Copyright, Designs and Patents Act 1988 (Chapter 48), المملكة المتحدة, WIPO Lex

النصوص الرئيسية

بالفرنسية (1988) النص الحالي بهذه اللغة غير متاح. وتُتاح نسخة سابقة لأغراض مرجعية

بالإنكليزية Copyright, Designs and Patents Act 1988 (Chapter 48)

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Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Copyright, Designs and Patents Act 1988. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details)

An Act to restate the law of copyright, with amendments; to make fresh provision as to the rights of performers and others in performances; to confer a design right in original designs; to amend the Registered Designs Act 1949; to make provision with respect to patent agents and trade mark agents; to confer patents and designs jurisdiction on certain county courts; to amend the law of patents; to make provision with respect to devices designed to circumvent copy-protection of works in electronic form; to make fresh provision penalising the fraudulent reception of transmissions; to make the fraudulent application or use of a trade mark an offence; to make provision for the benefit of the Hospital for Sick Children, Great Ormond Street, London; to enable financial assistance to be given to certain international bodies; and for connected purposes. [15th November 1988]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Annotations:

Modifications etc. (not altering text) C1 Act amended by Broadcasting Act 1990 (c. 42, SIF 96), s. 176, Sch. 17 para. 7(1)

PART I

Annotations:

Modifications etc. (not altering text) C2 Pt. I (ss. 1-179) modified by S.I. 1989/988, art. 2(3)

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C3 Pt. I (ss. 1-179) extended by S.I. 1989/1293, arts. 2(3), 3, 4(4)-(6) C4 Pt. I (ss. 1-179) applied (with modifications) by S.I. 1993/942, arts. 2(3), 5, Sch. 4 (with art. 6) C5 Pt. I (ss. 1-179) applied by S.I. 1993/942, arts. 4, 5, Sch. 4 (with art. 6)

Pt. I (ss. 1-179) applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(3), 3, 4(3)(5), 5, 7, Schs. 2, 4, 5 (as amended (22.4.2003) by S.I. 2003/774, arts. 2-5) (which S.I. and amending S.I. were revoked (1.5.2005) by S.I. 2005/852, art. 8(b)(d))

C6 Pt. 1 (ss. 1-179) extended in part (with modifications) by The Copyright (Bermuda) Order 2003 (S.I. 2003/1517), art. 2, Sch. (the amendment coming into force in accordance with art. 1 of the amending S.I.)

C7 Pt. 1 (ss. 1-179) modified (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 37(2) (with regs. 31-40)

C8 Pt. 1 (ss. 1-179) extended (with modifications) (1.5.2005) by The Copyright and Performances (Application to Other Countries) Order 2005 (S.I. 2005/852), arts. 2-5, Sch. (with art. 7) (which S.I. was revoked (6.4.2006) by SI 2006/316, art. 1(3))

C9 Pt. 1 (ss. 1-179) extended in part (with modifications) by The Copyright (Gibraltar) Order 2005 (S.I. 2005/853), art. 2, Sch. (the amendment coming into force in accordance with art. 1 of the amending S.I.)

C10 Pt. 1 (ss. 1-179) extended (with modifications) (6.4.2006) by The Copyright and Performances (Application to Other Countries) Order 2006 (S.I. 2006/316), {arts. 2- 5}, Sch. (with art. 7) (which S.I. was revoked (6.4.2007) by S.I. 2007/273, art. 1(3))

C11 Pt. 1 (ss. 1-179) extended (with modifications) (6.4.2007) by The Copyright and Performances (Application to Other Countries) Order 2007 (S.I. 2007/273), arts. 2-5, Sch. (with art. 7) (which S.I. was revoked (6.4.2008) by SI 2008/677, art. 1(3))

C12 Pt. 1 (ss. 1-179) extended (with modifications) (6.4.2008) by The Copyright and Performances (Application to Other Countries) Order 2008 (S.I. 2008/677), arts. 2-5, Sch. (with art. 7)

CHAPTER I

SUBSISTENCE, OWNERSHIP AND DURATION OF COPYRIGHT

Annotations:

Modifications etc. (not altering text) C13 Pt. I Ch. 1 (ss. 1-15) applied in part (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Introductory

1 Copyright and copyright works.

(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—

(a) original literary, dramatic, musical or artistic works, (b) sound recordings, films [F1or broadcasts], and (c) the typographical arrangement of published editions.

(2) In this Part “copyright work” means a work of any of those descriptions in which copyright subsists.

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(3) Copyright does not subsist in a work unless the requirements of this Part with respect to qualification for copyright protection are met (see section 153 and the provisions referred to there).

Annotations:

Amendments (Textual) F1 Words in s. 1(1)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 5(2) (with regs. 31-40)

2 Rights subsisting in copyright works.

(1) The owner of the copyright in a work of any description has the exclusive right to do the acts specified in Chapter II as the acts restricted by the copyright in a work of that description.

(2) In relation to certain descriptions of copyright work the following rights conferred by Chapter IV (moral rights) subsist in favour of the author, director or commissioner of the work, whether or not he is the owner of the copyright—

(a) section 77 (right to be identified as author or director), (b) section 80 (right to object to derogatory treatment of work), and (c) section 85 (right to privacy of certain photographs and films).

Descriptions of work and related provisions

3 Literary, dramatic and musical works.

(1) In this Part— “literary work” means any work, other than a dramatic or musical work,

which is written, spoken or sung, and accordingly includes— (a) a table or compilation [F2other than a database], F3. . . (b) a computer program; F4. . .[F5(c) preparatory design material for a computer

program][F6and (d) a database]

“dramatic work” includes a work of dance or mime; and “musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

(2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

(3) It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded.

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Annotations:

Amendments (Textual) F2 Words in s. 3(1)(a) inserted (1.1.1998) by S.I. 1997/3032, reg. 5(a) (with Pt. IV) F3 Word in s. 3(1) omitted (1.1.1993) by virtue of S.I. 1992/3233, reg. 3 F4 Word in s. 3(1)(b) left out (1.1.1998) by virtue of S.I. 1997/3032, reg. 5(b) (with Pt. IV) F5 Word and s. 3(1)(c) inserted (1.1.1993) by S.I. 1992/3233, reg. 3 F6 S. 3(1)(d) and word preceding it inserted (1.1.1998) by S.I. 1997/3032, reg. 5(c) (with Pt. IV)

[F73A Databases

(1) In this Part “database” means a collection of independent works, data or other materials which—

(a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means.

(2) For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.]

Annotations:

Amendments (Textual) F7 S. 3A inserted (1.1.1998) by S.I. 1997/3032, reg. 6 (with Pt. IV)

4 Artistic works.

(1) In this Part “artistic work” means— (a) a graphic work, photograph, sculpture or collage, irrespective of artistic

quality, (b) a work of architecture being a building or a model for a building, or (c) a work of artistic craftsmanship.

(2) In this Part— “building” includes any fixed structure, and a part of a building or fixed

structure; “graphic work” includes—

(a) any painting, drawing, diagram, map, chart or plan, and (b) any engraving, etching, lithograph, woodcut or similar work;

“photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film; “sculpture” includes a cast or model made for purposes of sculpture.

[F85A Sound recordings.

(1) In this Part “sound recording” means— (a) a recording of sounds, from which the sounds may be reproduced, or

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(b) a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced,

regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced.

(2) Copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording.]

Annotations:

Amendments (Textual) F8 Ss. 5A, 5B substituted for s. 5 (1.1.1996) by S.I. 1995/3297, reg. 9(1) (with Pt. III)

[F95B Films.

(1) In this Part “film” means a recording on any medium from which a moving image may by any means be produced.

(2) The sound track accompanying a film shall be treated as part of the film for the purposes of this Part.

(3) Without prejudice to the generality of subsection (2), where that subsection applies— (a) references in this Part to showing a film include playing the film sound track

to accompany the film, [F10(b) references in this Part to playing a sound recording, or to communicating a

sound recording to the public, do not include playing or communicating the film sound track to accompany the film,

(c) references in this Part to copying a work, so far as they apply to a sound recording, do not include copying the film sound track to accompany the film, and

(d) references in this Part to the issuing, rental or lending of copies of a work, so far as they apply to a sound recording, do not include the issuing, rental or lending of copies of the sound track to accompany the film.]

(4) Copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film.

(5) Nothing in this section affects any copyright subsisting in a film sound track as a sound recording.]

Annotations:

Amendments (Textual) F9 Ss. 5A, 5B substituted for s. 5 (1.1.1996) by S.I. 1995/3297, reg. 9(1) (with Pt. III) F10 S. 5B(3)(b)-(d) substituted (1.2.2006) for s. 5B(3)(b) and preceding word by The Performances (Moral

Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 2 (with reg. 8)

5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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6 Broadcasts.

[F11(1) In this Part a “broadcast” means an electronic transmission of visual images, sounds or other information which—

(a) is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or

(b) is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,

and which is not excepted by subsection (1A); and references to broadcasting shall be construed accordingly.

(1A) Excepted from the definition of “broadcast” is any internet transmission unless it is— (a) a transmission taking place simultaneously on the internet and by other means, (b) a concurrent transmission of a live event, or (c) a transmission of recorded moving images or sounds forming part of

a programme service offered by the person responsible for making the transmission, being a service in which programmes are transmitted at scheduled times determined by that person.]

(2) An encrypted transmission shall be regarded as capable of being lawfully received by members of the public only if decoding equipment has been made available to members of the public by or with the authority of the person making the transmission or the person providing the contents of the transmission.

(3) References in this Part to the person making a broadcast, [F12or a transmission which is a broadcast] are—

(a) to the person transmitting the programme, if he has responsibility to any extent for its contents, and

(b) to any person providing the programme who makes with the person transmitting it the arrangements necessary for its transmission;

and references in this Part to a programme, in the context of broadcasting, are to any item included in a broadcast.

[F13(4) For the purposes of this Part, the place from which a [F14wireless] broadcast is made is the place where, under the control and responsibility of the person making the broadcast, the programme-carrying signals are introduced into an uninterrupted chain of communication (including, in the case of a satellite transmission, the chain leading to the satellite and down towards the earth).]

[F15(4A) Subsections (3) and (4) have effect subject to section 6A (safeguards in case of certain satellite broadcasts).]

(5) References in this Part to the reception of a broadcast include reception of a broadcast relayed by means of a telecommunications system.

[F16(5A) The relaying of a broadcast by reception and immediate re-transmission shall be regarded for the purposes of this Part as a separate act of broadcasting from the making of the broadcast which is so re-transmitted.]

(6) Copyright does not subsist in a broadcast which infringes, or to the extent that it infringes, the copyright in another broadcast F17. . . .

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Annotations:

Amendments (Textual) F11 S. 6(1)(1A) substituted (31.10.2003) for s. 6(1) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 4(a) (with regs. 31-40) F12 Words in s. 6(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 4(b) (with regs. 31-40) F13 S. 6(4) substituted (1.12.1996 with effect as mentioned in reg. 28 of the amending S.I.) by S.I.

1996/2967, reg. 5 F14 Word in s. 6(4) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 4(c) (with regs. 31-40) F15 S. 6(4A) inserted (1.12.1996 with effect as mentioned in reg. 28 of the amending S.I.) by S.I.

1996/2967, reg. 6(1) F16 S. 6(5A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 4(d) (with regs. 31-40) F17 Words in s. 6(6) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F186A Safeguards in case of certain satellite broadcasts.

(1) This section applies where the place from which a broadcast by way of satellite transmission is made is located in a country other than an EEA State and the law of that country fails to provide at least the following level of protection—

(a) exclusive rights in relation to [F19wireless] broadcasting equivalent to those conferred by section 20 ([F20infringement by communication to the public]) on the authors of literary, dramatic, musical and artistic works, films and broadcasts;

(b) a right in relation to live [F21wireless] broadcasting equivalent to that conferred on a performer by section 182(1)(b) (consent required for live broadcast of performance); and

(c) a right for authors of sound recordings and performers to share in a single equitable remuneration in respect of the [F21wireless] broadcasting of sound recordings.

(2) Where the place from which the programme-carrying signals are transmitted to the satellite (“the uplink station”) is located in an EEA State—

(a) that place shall be treated as the place from which the broadcast is made, and (b) the person operating the uplink station shall be treated as the person making

the broadcast.

(3) Where the uplink station is not located in an EEA State but a person who is established in an EEA State has commissioned the making of the broadcast—

(a) that person shall be treated as the person making the broadcast, and (b) the place in which he has his principal establishment in the European

Economic Area shall be treated as the place from which the broadcast is made.]

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Annotations:

Amendments (Textual) F18 S. 6A inserted (1.12.1996 with effect as mentioned in reg. 28 of the amending S.I.) by S.I. 1996/2967,

reg. 6(2) F19 Words in s. 6A(1)(a) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 5(3)(a)(i) (with regs. 31-40) F20 Words in s. 6A(1)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 5(3)(a)(ii) (with regs. 31-40) F21 Word in s. 6A(1)(b)(c) inserted (31.10.2003.) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 5(3)(b) (with regs. 31-40)

7 Cable programmes. F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F22 S. 7 repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498),

regs. 2(2), 5(1), Sch. 2 (with regs. 31-40)

8 Published editions.

(1) In this Part “published edition”, in the context of copyright in the typographical arrangement of a published edition, means a published edition of the whole or any part of one or more literary, dramatic or musical works.

(2) Copyright does not subsist in the typographical arrangement of a published edition if, or to the extent that, it reproduces the typographical arrangement of a previous edition.

Authorship and ownership of copyright

9 Authorship of work.

(1) In this Part “author”, in relation to a work, means the person who creates it.

(2) That person shall be taken to be— [F23(aa) in the case of a sound recording, the producer;

(ab) in the case of a film, the producer and the principal director;] (b) in the case of a broadcast, the person making the broadcast (see section 6(3))

or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast;

(c) F24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) in the case of the typographical arrangement of a published edition, the

publisher.

(3) In the case of a literary, dramatic, musical or artistic work which is computer- generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

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(4) For the purposes of this Part a work is of “unknown authorship” if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known.

(5) For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if his identity is once known it shall not subsequently be regarded as unknown.

Annotations:

Amendments (Textual) F23 S. 9(2)(aa)(ab) substituted for s. 9(2)(a) (1.12.1996 with effect in relation to films made on or after

1.7.1994) by S.I. 1996/2967, regs. 18(1), 36 F24 S. 9(2)(c) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), regs. 2(2), 5(4), Sch. 2 (with regs. 31-40)

10 Works of joint authorship.

(1) In this Part a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.

[F25(1A) A film shall be treated as a work of joint authorship unless the producer and the principal director are the same person.]

(2) A broadcast shall be treated as a work of joint authorship in any case where more than one person is to be taken as making the broadcast (see section 6(3)).

(3) References in this Part to the author of a work shall, except as otherwise provided, be construed in relation to a work of joint authorship as references to all the authors of the work.

Annotations:

Amendments (Textual) F25 S. 10(1A) inserted (1.12.1996 with effet in relation to films made on or after 1.7.1994) by S.I.

1996/2967, regs. 18(2), 36

11 First ownership of copyright.

(1) The author of a work is the first owner of any copyright in it, subject to the following provisions.

(2) Where a literary, dramatic, musical or artistic work [F26, or a film,] is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.

(3) This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 and 165) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations).

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Annotations:

Amendments (Textual) F26 Words in s. 11(2) inserted (1.12.1996 with effect in relation to films made on or after 1.7.1994) by S.I.

1996/2967, regs. 18(3), 36

Duration of copyright

[F2712 Duration of copyright in literary, dramatic, musical or artistic works.

(1) The following provisions have effect with respect to the duration of copyright in a literary, dramatic, musical or artistic work.

(2) Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies, subject as follows.

(3) If the work is of unknown authorship, copyright expires— (a) at the end of the period of 70 years from the end of the calendar year in which

the work was made, or (b) if during that period the work is made available to the public, at the end of

the period of 70 years from the end of the calendar year in which it is first so made available,

subject as follows.

(4) Subsection (2) applies if the identity of the author becomes known before the end of the period specified in paragraph (a) or (b) of subsection (3).

(5) For the purposes of subsection (3) making available to the public includes— (a) in the case of a literary, dramatic or musical work—

(i) performance in public, or [F28(ii) communication to the public;]

(b) in the case of an artistic work— (i) exhibition in public,

(ii) a film including the work being shown in public, or [F29(iii) communication to the public;]

but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act.

(6) Where the country of origin of the work is not an EEA state and the author of the work is not a national of an EEA state, the duration of copyright is that to which the work is entitled in the country of origin, provided that does not exceed the period which would apply under subsections (2) to (5).

(7) If the work is computer-generated the above provisions do not apply and copyright expires at the end of the period of 50 years from the end of the calendar year in which the work was made.

(8) The provisions of this section are adapted as follows in relation to a work of joint authorship—

(a) the reference in subsection (2) to the death of the author shall be construed—

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(i) if the identity of all the authors is known, as a reference to the death of the last of them to die, and

(ii) if the identity of one or more of the authors is known and the identity of one or more others is not, as a reference to the death of the last whose identity is known;

(b) the reference in subsection (4) to the identity of the author becoming known shall be construed as a reference to the identity of any of the authors becoming known;

(c) the reference in subsection (6) to the author not being a national of an EEA state shall be construed as a reference to none of the authors being a national of an EEA state.

(9) This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 to [F30166D]) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations).]

Annotations:

Amendments (Textual) F27 S. 12 substituted (1.1.1996) by S.I. 1995/3297, reg. 5(1) (with Pt. III) F28 S. 12(5)(a)(ii) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003, (S.I.

2003/2498), reg. 2(1), {Sch. 1 para. 4(1)} (with regs. 31-40) F29 S. 12(5)(b)(iii) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003, (S.I.

2003/2498), reg. 2(1), {Sch. 1 para. 4(2)} (with regs. 31-40) F30 Word in s. 12(9) substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para.

23 (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

[F3113A Duration of copyright in sound recordings.

(1) The following provisions have effect with respect to the duration of copyright in a sound recording.

[F32(2) Subject to subsections (4) and (5), copyright expires— (a) at the end of the period of 50 years from the end of the calendar year in which

the recording is made, or (b) if during that period the recording is published, 50 years from the end of the

calendar year in which it is first published, or (c) if during that period the recording is not published but is made available to

the public by being played in public or communicated to the public, 50 years from the end of the calendar year in which it is first so made available,

but in determining whether a sound recording has been published, played in public or communicated to the public, no account shall be taken of any unauthorised act.]

(3) F33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Where the author of a sound recording is not a national of an EEA state, the duration of copyright is that to which the sound recording is entitled in the country of which

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the author is a national, provided that does not exceed the period which would apply under [F34subsection (2)].

(5) If or to the extent that the application of subsection (4) would be at variance with an international obligation to which the United Kingdom became subject prior to 29th October 1993, the duration of copyright shall be as specified in [F34subsection (2)].]

Annotations:

Amendments (Textual) F31 Ss. 13A, 13B substituted for s. 13 (1.1.1996) by S.I. 1995/3297, reg. 6(1) (with Pt. IV) F32 S. 13A(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 29(a) (with regs. 31-40) F33 S. 13A(3) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), regs. 2(2), 29(b), Sch. 2 (with regs. 31-40) F34 Words in s. 13A(4)(5) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I.2003/2498), reg. 29(c) (with regs. 31-40)

[F3513B Duration of copyright in films.

(1) The following provisions have effect with respect to the duration of copyright in a film.

(2) Copyright expires at the end of the period of 70 years from the end of the calendar year in which the death occurs of the last to die of the following persons—

(a) the principal director, (b) the author of the screenplay, (c) the author of the dialogue, or (d) the composer of music specially created for and used in the film;

subject as follows.

(3) If the identity of one or more of the persons referred to in subsection (2)(a) to (d) is known and the identity of one or more others is not, the reference in that subsection to the death of the last of them to die shall be construed as a reference to the death of the last whose identity is known.

(4) If the identity of the persons referred to in subsection (2)(a) to (d) is unknown, copyright expires at—

(a) the end of the period of 70 years from the end of the calendar year in which the film was made, or

(b) if during that period the film is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available.

(5) Subsections (2) and (3) apply if the identity of any of those persons becomes known before the end of the period specified in paragraph (a) or (b) of subsection (4).

(6) For the purposes of subsection (4) making available to the public includes— (a) showing in public, or

[F36(b) communicating to the public;] but in determining generally for the purposes of that subsection whether a film has been made available to the public no account shall be taken of any unauthorised act.

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(7) Where the country of origin is not an EEA state and the author of the film is not a national of an EEA state, the duration of copyright is that to which the work is entitled in the country of origin, provided that does not exceed the period which would apply under subsections (2) to (6).

(8) In relation to a film of which there are joint authors, the reference in subsection (7) to the author not being a national of an EEA state shall be construed as a reference to none of the authors being a national of an EEA state.

(9) If in any case there is no person falling within paragraphs (a) to (d) of subsection (2), the above provisions do not apply and copyright expires at the end of the period of 50 years from the end of the calendar year in which the film was made.

(10) For the purposes of this section the identity of any of the persons referred to in subsection (2)(a) to (d) shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if the identity of any such person is once known it shall not subsequently be regarded as unknown.]

Annotations:

Amendments (Textual) F35 Ss. 13A, 13B substituted for s. 13 (1.1.1996) by S.I. 1995/3297, reg. 6(1) (with Pt. IV) F36 S. 13B(6)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 4(3) (with regs. 31-40)

13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F3814 Duration of copyright in broadcasts F37. . . .

(1) The following provisions have effect with respect to the duration of copyright in a broadcast F39. . . .

(2) Copyright in a broadcast . . . expires at the end of the period of 50 years from the end of the calendar year in which the broadcast was made F40. . . , subject as follows.

(3) Where the author of the broadcast . . . is not a national of an EEA state, the duration of copyright in the broadcast . . . is that to which it is entitled in the country of which the author is a national, provided that does not exceed the period which would apply under subsection (2).

(4) If or to the extent that the application of subsection (3) would be at variance with an international obligation to which the United Kingdom became subject prior to 29th October 1993, the duration of copyright shall be as specified in subsection (2).

(5) Copyright in a repeat broadcast . . . expires at the same time as the copyright in the original broadcast . . . ; and accordingly no copyright arises in respect of a repeat broadcast . . . which is broadcast F41. . . after the expiry of the copyright in the original broadcast . . . .

(6) A repeat broadcast . . . means one which is a repeat F42. . . of a broadcast previously made . . . .]

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Annotations:

Amendments (Textual) F37 Words in s. 14 heading repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F38 S. 14 substituted (1.1.1996) by S.I. 1995/3297, reg. 7(1) (with Pt. IV) F39 Words in s. 14 repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F40 Words in s. 14(2) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F41 Words in s. 14(5) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F42 Words in s. 14(6) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

15 Duration of copyright in typographical arrangement of published editions.

Copyright in the typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published.

[F4315A Meaning of country of origin.

(1) For the purposes of the provisions of this Part relating to the duration of copyright the country of origin of a work shall be determined as follows.

(2) If the work is first published in a Berne Convention country and is not simultaneously published elsewhere, the country of origin is that country.

(3) If the work is first published simultaneously in two or more countries only one of which is a Berne Convention country, the country of origin is that country.

(4) If the work is first published simultaneously in two or more countries of which two or more are Berne Convention countries, then—

(a) if any of those countries is an EEA state, the country of origin is that country; and

(b) if none of those countries is an EEA state, the country of origin is the Berne Convention country which grants the shorter or shortest period of copyright protection.

(5) If the work is unpublished or is first published in a country which is not a Berne Convention country (and is not simultaneously published in a Berne Convention country), the country of origin is—

(a) if the work is a film and the maker of the film has his headquarters in, or is domiciled or resident in a Berne Convention country, that country;

(b) if the work is— (i) a work of architecture constructed in a Berne Convention country, or

(ii) an artistic work incorporated in a building or other structure situated in a Berne Convention country,

that country; (c) in any other case, the country of which the author of the work is a national.

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(6) In this section— (a) a “Berne Convention country” means a country which is a party to any Act of

the International Convention for the Protection of Literary and Artistic Works signed at Berne on 9th September 1886; and

(b) references to simultaneous publication are to publication within 30 days of first publication.]

Annotations:

Amendments (Textual) F43 S. 15A inserted (1.1.1996) by S.I. 1995/3297, reg. 8(1) (with Pt. IV)

CHAPTER II

RIGHTS OF COPYRIGHT OWNER

Annotations:

Modifications etc. (not altering text) C14 Pt. I Ch. II (ss. 16-27) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1) (with Pt.

III)

The acts restricted by copyright

16 The acts restricted by copyright in a work.

(1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom—

(a) to copy the work (see section 17); (b) to issue copies of the work to the public (see section 18);

[F44(ba) to rent or lend the work to the public (see section 18A);] (c) to perform, show or play the work in public (see section 19);

[F45(d) to communicate the work to the public (see section 20);] (e) to make an adaptation of the work or do any of the above in relation to an

adaptation (see section 21); and those acts are referred to in this Part as the “acts restricted by the copyright”.

(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.

(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it—

(a) in relation to the work as a whole or any substantial part of it, and (b) either directly or indirectly;

and it is immaterial whether any intervening acts themselves infringe copyright.

(4) This Chapter has effect subject to—

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(a) the provisions of Chapter III (acts permitted in relation to copyright works), and

(b) the provisions of Chapter VII (provisions with respect to copyright licensing).

Annotations:

Amendments (Textual) F44 S. 16(1)(ba) inserted (1.12.1996) by S.I. 1996/2967, reg. 10(1) (with Pt. III) F45 S. 16(1)(d) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 6(2) (with regs. 31-40)

17 Infringement of copyright by copying.

(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.

This includes storing the work in any medium by electronic means.

(3) In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work.

(4) Copying in relation to a film [F46or broadcast] includes making a photograph of the whole or any substantial part of any image forming part of the film [F46or broadcast].

(5) Copying in relation to the typographical arrangement of a published edition means making a facsimile copy of the arrangement.

(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.

Annotations:

Amendments (Textual) F46 Words in s. 17(4) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), regs. 2(1), 5(5), Sch. 1 para. 3(1)(a) (with regs. 31-40)

18 Infringement by issue of copies to the public.

(1) The issue to the public of copies of the work is an act restricted by the copyright in every description of copyright work.

[F47(2) References in this Part to the issue to the public of copies of a work are to— (a) the act of putting into circulation in the EEA copies not previously put into

circulation in the EEA by or with the consent of the copyright owner, or (b) the act of putting into circulation outside the EEA copies not previously put

into circulation in the EEA or elsewhere.

(3) References in this Part to the issue to the public of copies of a work do not include—

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(a) any subsequent distribution, sale, hiring or loan of copies previously put into circulation (but see section 18A: infringement by rental or lending), or

(b) any subsequent importation of such copies into the United Kingdom or another EEA state,

except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEA copies previously put into circulation outside the EEA.]

[F48(4) References in this Part to the issue of copies of a work include the issue of the original.]

Annotations:

Amendments (Textual) F47 S. 18(2)(3) substituted (1.12.1996) by S.I. 1996/2967, reg. 9(2) (with Pt. III) F48 S. 18(4) added (1.12.1996) by S.I. 1996/2967, reg. 9(3) (with Pt. III)

[F4918A Infringement by rental or lending of work to the public.

(1) The rental or lending of copies of the work to the public is an act restricted by the copyright in—

(a) a literary, dramatic or musical work, (b) an artistic work, other than—

(i) a work of architecture in the form of a building or a model for a building, or

(ii) a work of applied art, or (c) a film or a sound recording.

(2) In this Part, subject to the following provisions of this section— (a) “rental” means making a copy of the work available for use, on terms that

it will or may be returned, for direct or indirect economic or commercial advantage, and

(b) “lending” means making a copy of the work available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public.

(3) The expressions “rental” and “lending” do not include— (a) making available for the purpose of public performance, playing or showing

in public [F50or communication to the public]; (b) making available for the purpose of exhibition in public; or (c) making available for on-the-spot reference use.

(4) The expression “lending” does not include making available between establishments which are accessible to the public.

(5) Where lending by an establishment accessible to the public gives rise to a payment the amount of which does not go beyond what is necessary to cover the operating costs of the establishment, there is no direct or indirect economic or commercial advantage for the purposes of this section.

(6) References in this Part to the rental or lending of copies of a work include the rental or lending of the original.]

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Annotations:

Amendments (Textual) F49 S. 18A inserted (1.12.1996) by S.I. 1996/2967, reg. 10(2) (with Pt. III) F50 Words in s. 18A(3)(a) substituted by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 6(2)(a) (with regs. 31-40)

19 Infringement by performance, showing or playing of work in public.

(1) The performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work.

(2) In this Part “performance”, in relation to a work— (a) includes delivery in the case of lectures, addresses, speeches and sermons, and (b) in general, includes any mode of visual or acoustic presentation, including

presentation by means of a sound recording, film [F51or broadcast] of the work.

(3) The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film [F51or broadcast].

(4) Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds conveyed by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be regarded as responsible for the infringement.

Annotations:

Amendments (Textual) F51 Words in s. 19(2)(b)(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(b)(c) (with regs. 31-40)

[F5220 Infringement by communication to the public

(1) The communication to the public of the work is an act restricted by the copyright in— (a) a literary, dramatic, musical or artistic work, (b) a sound recording or film, or (c) a broadcast.

(2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include—

(a) the broadcasting of the work; (b) the making available to the public of the work by electronic transmission in

such a way that members of the public may access it from a place and at a time individually chosen by them.]

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Annotations:

Amendments (Textual) F52 S. 20 substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 6(1) (with regs. 31-40)

21 Infringement by making adaptation or act done in relation to adaptation.

(1) The making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work.

For this purpose an adaptation is made when it is recorded, in writing or otherwise.

(2) The doing of any of the acts specified in sections 17 to 20, or subsection (1) above, in relation to an adaptation of the work is also an act restricted by the copyright in a literary, dramatic or musical work.

For this purpose it is immaterial whether the adaptation has been recorded, in writing or otherwise, at the time the act is done.

(3) In this Part “adaptation”— (a) in relation to a literary [F53work, [F54other than a computer program or a

database, or in relation to a]] dramatic work, means— (i) a translation of the work;

(ii) a version of a dramatic work in which it is converted into a non- dramatic work or, as the case may be, of a non-dramatic work in which it is converted into a dramatic work;

(iii) a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;

[F55(ab) in relation to a computer program, means an arrangement or altered version of the program or a translation of it;]

[F56(ac) in relation to a database, means an arrangement or altered version of the database or a translation of it;]

(b) in relation to a musical work, means an arrangement or transcription of the work.

(4) In relation to a computer program a “translation” includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code F57. . .

(5) No inference shall be drawn from this section as to what does or does not amount to copying a work.

Annotations:

Amendments (Textual) F53 Words in s. 21(3)(a) inserted (1.1.1993) by S.I. 1992/3233, reg. 5(1) F54 Words in s. 21(3)(a) substituted (1.1.1998) by S.I. 1997/3032, reg. 7(a) (with Pt. IV) F55 S. 21(3)(ab) inserted (1.1.1993) by S.I. 1992/3233, reg. 5(2) F56 S. 21(3)(ac) inserted (1.1.1998) by S.I. 1997/3032, reg. 7(b) (with Pt. IV)

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F57 Words in s. 21(4) omitted (1.1.1993) by virtue of S.I. 1992/3233, reg. 5(3)

Secondary infringement of copyright

22 Secondary infringement: importing infringing copy.

The copyright in a work is infringed by a person who, without the licence of the copyright owner, imports into the United Kingdom, otherwise than for his private and domestic use, an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

23 Secondary infringement: possessing or dealing with infringing copy.

The copyright in a work is infringed by a person who, without the licence of the copyright owner—

(a) possesses in the course of a business, (b) sells or lets for hire, or offers or exposes for sale or hire, (c) in the course of a business exhibits in public or distributes, or (d) distributes otherwise than in the course of a business to such an extent as to

affect prejudicially the owner of the copyright, an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

24 Secondary infringement: providing means for making infringing copies.

(1) Copyright in a work is infringed by a person who, without the licence of the copyright owner—

(a) makes, (b) imports into the United Kingdom, (c) possesses in the course of a business, or (d) sells or lets for hire, or offers or exposes for sale or hire,

an article specifically designed or adapted for making copies of that work, knowing or having reason to believe that it is to be used to make infringing copies.

(2) Copyright in a work is infringed by a person who without the licence of the copyright owner transmits the work by means of a telecommunications system (otherwise than by [F58communication to the public]), knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in the United Kingdom or elsewhere.

Annotations:

Amendments (Textual) F58 Words in s. 24(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 5(a) (with regs. 31-40)

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25 Secondary infringement: permitting use of premises for infringing performance.

(1) Where the copyright in a literary, dramatic or musical work is infringed by a performance at a place of public entertainment, any person who gave permission for that place to be used for the performance is also liable for the infringement unless when he gave permission he believed on reasonable grounds that the performance would not infringe copyright.

(2) In this section “place of public entertainment” includes premises which are occupied mainly for other purposes but are from time to time made available for hire for the purposes of public entertainment.

26 Secondary infringement: provision of apparatus for infringing performance, &c.

(1) Where copyright in a work is infringed by a public performance of the work, or by the playing or showing of the work in public, by means of apparatus for—

(a) playing sound recordings, (b) showing films, or (c) receiving visual images or sounds conveyed by electronic means,

the following persons are also liable for the infringement.

(2) A person who supplied the apparatus, or any substantial part of it, is liable for the infringement if when he supplied the apparatus or part—

(a) he knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright, or

(b) in the case of apparatus whose normal use involves a public performance, playing or showing, he did not believe on reasonable grounds that it would not be so used as to infringe copyright.

(3) An occupier of premises who gave permission for the apparatus to be brought onto the premises is liable for the infringement if when he gave permission he knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright.

(4) A person who supplied a copy of a sound recording or film used to infringe copyright is liable for the infringement if when he supplied it he knew or had reason to believe that what he supplied, or a copy made directly or indirectly from it, was likely to be so used as to infringe copyright.

Infringing copies

27 Meaning of “infringing copy”.

(1) In this Part “infringing copy”, in relation to a copyright work, shall be construed in accordance with this section.

(2) An article is an infringing copy if its making constituted an infringement of the copyright in the work in question.

(3) F59. . . An article is also an infringing copy if— (a) it has been or is proposed to be imported into the United Kingdom, and (b) its making in the United Kingdom would have constituted an infringement

of the copyright in the work in question, or a breach of an exclusive licence agreement relating to that work.

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F60(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Where in any proceedings the question arises whether an article is an infringing copy and it is shown—

(a) that the article is a copy of the work, and (b) that copyright subsists in the work or has subsisted at any time,

it shall be presumed until the contrary is proved that the article was made at a time when copyright subsisted in the work.

(5) Nothing in subsection (3) shall be construed as applying to an article which may lawfully be imported into the United Kingdom by virtue of any enforceable [F61EU] right within the meaning of section 2(1) of the M1European Communities Act 1972.

(6) In this Part “infringing copy” includes a copy falling to be treated as an infringing copy by virtue of any of the following provisions —

[F62section 31A(6) and (9) (making a single accessible copy for personal use),] section 32(5) (copies made for purposes of instruction or examination), section 35(3) (recordings made by educational establishments for educational purposes), section 36(5) (reprographic copying by educational establishments for purposes of instruction), section 37(3)(b) (copies made by librarian or archivist in reliance on false declaration), section 56(2) (further copies, adaptations, &c. of work in electronic form retained on transfer of principal copy), section 63(2) (copies made for purpose of advertising artistic work for sale), section 68(4) (copies made for purpose of broadcast F63. . . ), [F64section 70(2) (recording for the purposes of time-shifting), section 71(2) (photographs of broadcasts), or] any provision of an order under section 141 (statutory licence for certain reprographic copying by educational establishments).

Annotations:

Amendments (Textual) F59 Words in s. 27(3) omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 9(4) (with Pt. III) F60 S. 27(3A) omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 9(4) (with Pt. III) F61 Word substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 6 F62 Words in s. 27(6) inserted (31.10.2003) by 2002 c. 33, ss. 7(1), 8(2); S.I. 2003/2499, art. 2 F63 Words in s. 27(6) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F64 S. 27(6): entries substituted (31.10.2003) for word "or" appearing at end of entry for s. 68(4) by The

Marginal Citations M1 1972 c. 68.

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CHAPTER III

ACTS PERMITTED IN RELATION TO COPYRIGHT WORKS

Annotations:

Modifications etc. (not altering text) C15 Pt. I Ch. III (ss. 28–76) amended by Broadcasting Act 1990 (c. 42, SIF 96), s. 176, Sch. 17 para. 7(1) C16 Pt. I Ch. III (ss. 28-76) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1)-(3)

(with Pt. III) C17 Pt. I Ch. III (ss. 28-76) continued (31.10.2003) by virtue of The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 33, (with regs. 31-40)

Introductory

28 Introductory provisions.

(1) The provisions of this Chapter specify acts which may be done in relation to copyright works notwithstanding the subsistence of copyright; they relate only to the question of infringement of copyright and do not affect any other right or obligation restricting the doing of any of the specified acts.

(2) Where it is provided by this Chapter that an act does not infringe copyright, or may be done without infringing copyright, and no particular description of copyright work is mentioned, the act in question does not infringe the copyright in a work of any description.

(3) No inference shall be drawn from the description of any act which may by virtue of this Chapter be done without infringing copyright as to the scope of the acts restricted by the copyright in any description of work.

(4) The provisions of this Chapter are to be construed independently of each other, so that the fact that an act does not fall within one provision does not mean that it is not covered by another provision.

General

[F6528A Making of temporary copies

Copyright in a literary work, other than a computer program or a database, or in a dramatic, musical or artistic work, the typographical arrangement of a published edition, a sound recording or a film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable—

(a) a transmission of the work in a network between third parties by an intermediary; or

(b) a lawful use of the work; and which has no independent economic significance.]

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Annotations:

Amendments (Textual) F65 S. 28A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498),

reg. 8(1) (with regs. 31-40)

29 Research and private study.

[F66(1) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.]

[F67(1B) No acknowledgement is required in connection with fair dealing for the purposes mentioned in subsection (1) where this would be impossible for reasons of practicality or otherwise.

(1C) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of private study does not infringe any copyright in the work.]

(2) Fair dealing with the typographical arrangement of a published edition for the purposes [F68of research or private study] does not infringe any copyright in the arrangement.

(3) Copying by a person other than the researcher or student himself is not fair dealing if— (a) in the case of a librarian, or a person acting on behalf of a librarian, he does

anything which regulations under section 40 would not permit to be done under section 38 or 39 (articles or parts of published works: restriction on multiple copies of same material), or

(b) in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.

[F69(4) It is not fair dealing— (a) to convert a computer program expressed in a low level language into a

version expressed in a higher level language, or (b) incidentally in the course of so converting the program, to copy it,

(these acts being permitted if done in accordance with section 50B (decompilation)).]

[F70(4A) It is not fair dealing to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program (these acts being permitted if done in accordance with section 50BA (observing, studying and testing)).]

(5) F71. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F66 S. 29(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 9(a), (with regs 31-40) F67 S. 29(1B)(1C) substituted (31.10.2003) for s. 29(1A) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 9(b) (with regs. 31-40)

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F68 Words in s. 29(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 9(c) (with regs. 31-40)

F69 S. 29(4) inserted (1.1.1993) by S.I. 1992/3233, reg. 7 F70 S. 29(4A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 9(d) (with regs. 31-40) F71 S. 29(5) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), regs. 2(2), 9(e), Sch. 2 (with regs. 31-40)

30 Criticism, review and news reporting.

(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement [F72 and provided that the work has been made available to the public].

[F73(1A) For the purposes of subsection (1) a work has been made available to the public if it has been made available by any means, including—

(a) the issue of copies to the public; (b) making the work available by means of an electronic retrieval system; (c) the rental or lending of copies of the work to the public; (d) the performance, exhibition, playing or showing of the work in public; (e) the communication to the public of the work,

but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act.]

(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.

(3) No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film [F74 or broadcast where this would be impossible for reasons of practicality or otherwise].

Annotations:

Amendments (Textual) F72 Words in s. 30(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 10(1)(a) (with regs. 31-40) F73 S. 30(1A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 10(1)(b) (with regs. 31-40) F74 Words in s. 30(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 10(1)(c) (with regs. 31-40)

31 Incidental inclusion of copyright material.

(1) Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film [F75or broadcast].

(2) Nor is the copyright infringed by the issue to the public of copies, or the playing, showing [F76or communication to the public], of anything whose making was, by virtue of subsection (1), not an infringement of the copyright.

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(3) A musical work, words spoken or sung with music, or so much of a sound recording [F75or broadcast] as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included.

Annotations:

Amendments (Textual) F75 Words in s. 31(1)(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(d)(e) (with regs. 31-40) F76 Words in s. 31(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(31.10.2003), reg. 2(1), {Sch. 1 para. 6(2)(b)} (with reg. 31-40)

[F77Visual impairment]

Annotations:

Amendments (Textual) F77 S. 31A and cross-heading inserted (31.10.2003) by 2002 c. 33, ss. 1, 8(2); S.I. 2003/2499, art. 2

[F7831A Making a single accessible copy for personal use

(1) If a visually impaired person has lawful possession or lawful use of a copy (“the master copy”) of the whole or part of—

(a) a literary, dramatic, musical or artistic work; or (b) a published edition,

which is not accessible to him because of the impairment, it is not an infringement of copyright in the work, or in the typographical arrangement of the published edition, for an accessible copy of the master copy to be made for his personal use.

(2) Subsection (1) does not apply— (a) if the master copy is of a musical work, or part of a musical work, and the

making of an accessible copy would involve recording a performance of the work or part of it; or

(b) if the master copy is of a database, or part of a database, and the making of an accessible copy would infringe copyright in the database.

(3) Subsection (1) does not apply in relation to the making of an accessible copy for a particular visually impaired person if, or to the extent that, copies of the copyright work are commercially available, by or with the authority of the copyright owner, in a form that is accessible to that person.

(4) An accessible copy made under this section must be accompanied by— (a) a statement that it is made under this section; and (b) a sufficient acknowledgement.

(5) If a person makes an accessible copy on behalf of a visually impaired person under this section and charges for it, the sum charged must not exceed the cost of making and supplying the copy.

Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright Chapter III – Acts Permitted in relation to Copyright Works Document Generated: 2013-10-17

(6) If a person holds an accessible copy made under subsection (1) when he is not entitled to have it made under that subsection, the copy is to be treated as an infringing copy, unless he is a person falling within subsection (7)(b).

(7) A person who holds an accessible copy made under subsection (1) may transfer it to— (a) a visually impaired person entitled to have the accessible copy made under

subsection (1); or (b) a person who has lawful possession of the master copy and intends to transfer

the accessible copy to a person falling within paragraph (a).

(8) The transfer by a person (“V”) of an accessible copy made under subsection (1) to another person (“T”) is an infringement of copyright by V unless V has reasonable grounds for believing that T is a person falling within subsection (7)(a) or (b).

(9) If an accessible copy which would be an infringing copy but for this section is subsequently dealt with—

(a) it is to be treated as an infringing copy for the purposes of that dealing; and (b) if that dealing infringes copyright, is to be treated as an infringing copy for

all subsequent purposes.

(10) In subsection (9), “dealt with” means sold or let for hire or offered or exposed for sale or hire or included in a broadcast or cable programme service.]

Annotations:

Amendments (Textual) F78 S. 31A and cross-heading inserted (31.10.2003) by 2002 c. 33, ss. 1, 8(2); S.I. 2003/2499, art. 2

[F7931B Multiple copies for visually impaired persons

(1) If an approved body has lawful possession of a copy (“the master copy”) of the whole or part of—

(a) a commercially published literary, dramatic, musical or artistic work; or (b) a commercially published edition,

it is not an infringement of copyright in the work, or in the typographical arrangement of the published edition, for the body to make, or supply, accessible copies for the personal use of visually impaired persons to whom the master copy is not accessible because of their impairment.

(2) Subsection (1) does not apply— (a) if the master copy is of a musical work, or part of a musical work, and the

making of an accessible copy would involve recording a performance of the work or part of it; or

(b) if the master copy is of a database, or part of a database, and the making of an accessible copy would infringe copyright in the database.

(3) Subsection (1) does not apply in relation to the making of an accessible copy if, or to the extent that, copies of the copyright work are commercially available, by or with the authority of the copyright owner, in a form that is accessible to the same or substantially the same degree.

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(4) Subsection (1) does not apply in relation to the supply of an accessible copy to a particular visually impaired person if, or to the extent that, copies of the copyright work are commercially available, by or with the authority of the copyright owner, in a form that is accessible to that person.

(5) An accessible copy made under this section must be accompanied by— (a) a statement that it is made under this section; and (b) a sufficient acknowledgement.

(6) If an approved body charges for supplying a copy made under this section, the sum charged must not exceed the cost of making and supplying the copy.

(7) An approved body making copies under this section must, if it is an educational establishment, ensure that the copies will be used only for its educational purposes.

(8) If the master copy is in copy-protected electronic form, any accessible copy made of it under this section must, so far as it is reasonably practicable to do so, incorporate the same, or equally effective, copy protection (unless the copyright owner agrees otherwise).

(9) If an approved body continues to hold an accessible copy made under subsection (1) when it would no longer be entitled to make or supply such a copy under that subsection, the copy is to be treated as an infringing copy.

(10) If an accessible copy which would be an infringing copy but for this section is subsequently dealt with—

(a) it is to be treated as an infringing copy for the purposes of that dealing; and (b) if that dealing infringes copyright, is to be treated as an infringing copy for

all subsequent purposes.

(11) In subsection (10), “dealt with” means sold or let for hire or offered or exposed for sale or hire or included in a broadcast or cable programme service.

(12) “Approved body” means an educational establishment or a body that is not conducted for profit.

(13) “Supplying” includes lending.]

Annotations:

Amendments (Textual) F79 S. 31B inserted (31.10.2003) by 2002 c. 33, ss. 2, 8(2); S.I. 2003/2499, art. 2

[F8031C Intermediate copies and records

(1) An approved body entitled to make accessible copies under section 31B may hold an intermediate copy of the master copy which is necessarily created during the production of the accessible copies, but only—

(a) if and so long as the approved body continues to be entitled to make accessible copies of that master copy; and

(b) for the purposes of the production of further accessible copies.

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(2) An intermediate copy which is held in breach of subsection (1) is to be treated as an infringing copy.

(3) An approved body may lend or transfer the intermediate copy to another approved body which is entitled to make accessible copies of the work or published edition under section 31B.

(4) The loan or transfer by an approved body (“A”) of an intermediate copy to another person (“B”) is an infringement of copyright by A unless A has reasonable grounds for believing that B—

(a) is another approved body which is entitled to make accessible copies of the work or published edition under section 31B; and

(b) will use the intermediate copy only for the purposes of the production of further accessible copies.

(5) If an approved body charges for lending or transferring the intermediate copy, the sum charged must not exceed the cost of the loan or transfer.

(6) An approved body must— (a) keep records of accessible copies made under section 31B and of the persons

to whom they are supplied; (b) keep records of any intermediate copy lent or transferred under this section

and of the persons to whom it is lent or transferred; and (c) allow the copyright owner or a person acting for him, on giving reasonable

notice, to inspect the records at any reasonable time.

(7) Within a reasonable time of making an accessible copy under section 31B, or lending or transferring an intermediate copy under this section, the approved body must—

(a) notify each relevant representative body; or (b) if there is no such body, notify the copyright owner.

(8) A relevant representative body is a body which— (a) represents particular copyright owners, or owners of copyright in the type of

classes of copyright owner, represented by it.

(9) The requirement to notify the copyright owner under subsection (7)(b) does not apply if it is not reasonably possible for the approved body to ascertain the name and address of the copyright owner.]

Annotations:

Amendments (Textual) F80 S. 31C inserted (31.10.2003) by 2002 c. 33, ss. 3, 8(2); S.I. 2003/2499, art. 2

[F8131D Licensing schemes

(1) Section 31B does not apply to the making of an accessible copy in a particular form if—

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(a) a licensing scheme operated by a licensing body is in force under which licences may be granted by the licensing body permitting the making and supply of copies of the copyright work in that form;

(b) the scheme is not unreasonably restrictive; and (c) the scheme and any modification made to it have been notified to the Secretary

of State by the licensing body.

(2) A scheme is unreasonably restrictive if it includes a term or condition which— (a) purports to prevent or limit the steps that may be taken under section 31B or

31C; or (b) has that effect.

(3) But subsection (2) does not apply if— (a) the copyright work is no longer published by or with the authority of the

accessible copies of the work.

(4) If section 31B or 31C is displaced by a licensing scheme, sections 119 to 122 apply in relation to the scheme as if it were one to which those sections applied as a result of section 117.]

Annotations:

Amendments (Textual) F81 S. 31D inserted (31.10.2003) by 2002 c. 33, ss. 4, 8(2); S.I. 2003/2499, art. 2

[F8231E Limitations, etc. following infringement of copyright

(1) The Secretary of State may make an order under this section if it appears to him that the making of copies—

(a) under section 31B; or (b) under a licence granted under a licensing scheme that has been notified under

section 31D, has led to infringement of copyright on a scale which, in the Secretary of State’s opinion, would not have occurred if section 31B had not been in force, or the licence had not been granted.

(2) The order may prohibit one or more named approved bodies, or one or more specified categories of approved body, from—

(a) acting under section 31B; or (b) acting under a licence of a description specified in the order.

(3) The order may disapply— (a) the provisions of section 31B; or (b) the provisions of a licence, or a licensing scheme, of a description specified

in the order, in respect of the making of copies of a description so specified.

(4) If the Secretary of State proposes to make an order he must, before making it, consult —

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(a) such bodies representing copyright owners as he thinks fit; and (b) such bodies representing visually impaired persons as he thinks fit.

(5) If the Secretary of State proposes to make an order which includes a prohibition he must, before making it, consult—

(a) if the proposed order is to apply to one or more named approved bodies, that body or those bodies;

(b) if it is to apply to one or more specified categories of approved body, to such bodies representing approved bodies of that category or those categories as he thinks fit.

(6) An approved body which is prohibited by an order from acting under a licence may not apply to the Copyright Tribunal under section 121(1) in respect of a refusal or failure by a licensing body to grant such a licence.]

Annotations:

Amendments (Textual) F82 S. 31E inserted (31.10.2003) by 2002 c. 33, ss. 5, 8(2); S.I. 2003/2499, art. 2

[F8331F Definitions and other supplementary provision for sections 31A to 31E

(1) This section supplements sections 31A to 31E and includes definitions.

(2) A copy of a copyright work (other than an accessible copy made under section 31A or 31B) is to be taken to be accessible to a visually impaired person only if it is as accessible to him as it would be if he were not visually impaired.

(3) “Accessible copy”, in relation to a copyright work, means a version which provides for a visually impaired person improved access to the work.

(4) An accessible copy may include facilities for navigating around the version of the copyright work but may not include—

(a) changes that are not necessary to overcome problems caused by visual impairment; or

(b) changes which infringe the right (provided by section 80) not to have the work subjected to derogatory treatment.

(5) “Approved body” has the meaning given in section 31B(12).

(6) “Lending”, in relation to a copy, means making it available for use, otherwise than for direct or indirect economic or commercial advantage, on terms that it will or may be returned.

(7) For the purposes of subsection (6), a loan is not to be treated as being for direct or indirect economic or commercial advantage if a charge is made for the loan which does not exceed the cost of making and supplying the copy.

(8) The definition of “lending” in section 18A does not apply for the purposes of sections 31B and 31C.

(9) “Visually impaired person” means a person— (a) who is blind;

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(b) who has an impairment of visual function which cannot be improved, by the use of corrective lenses, to a level that would normally be acceptable for reading without a special level or kind of light;

(c) who is unable, through physical disability, to hold or manipulate a book; or (d) who is unable, through physical disability, to focus or move his eyes to the

extent that would normally be acceptable for reading.

(10) The Secretary of State may by regulations prescribe— (a) the form in which; or (b) the procedure in accordance with which,

any notice required under section 31C(7) or (8), or 31D(1), must be given.

(11) Any power to make regulations or orders is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]

Annotations:

Amendments (Textual) F83 S. 31F inserted (31.10.2003) by 2002 c. 33, ss. 6, 8(2); S.I. 2003/2499, art. 2

Education

32 Things done for purposes of instruction or examination.

[F84(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying—

(a) is done by a person giving or receiving instruction, (b) is not done by means of a reprographic process, and (c) is accompanied by a sufficient acknowledgement,

and provided that the instruction is for a non-commercial purpose.

(2) Copyright in a sound recording, film or broadcast is not infringed by its being copied by making a film or film sound-track in the course of instruction, or of preparation for instruction, in the making of films or film sound-tracks, provided the copying—

(a) is done by a person giving or receiving instruction, and (b) is accompanied by a sufficient acknowledgement,

and provided that the instruction is for a non-commercial purpose.

(2A) Copyright in a literary, dramatic, musical or artistic work which has been made available to the public is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying—

(a) is fair dealing with the work, (b) is done by a person giving or receiving instruction, (c) is not done by means of a reprographic process, and (d) is accompanied by a sufficient acknowledgement.

(2B) The provisions of section 30(1A) (works made available to the public) apply for the purposes of subsection (2A) as they apply for the purposes of section 30(1).]

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(3) Copyright is not infringed by anything done for the purposes of an examination by way of setting the questions, communicating the questions to the candidates or answering the questions [F85, provided that the questions are accompanied by a sufficient acknowledgement].

[F86(3A) No acknowledgement is required in connection with copying as mentioned in subsection (1), (2) or (2A), or in connection with anything done for the purposes mentioned in subsection (3), where this would be impossible for reasons of practicality or otherwise.]

(4) Subsection (3) does not extend to the making of a reprographic copy of a musical work for use by an examination candidate in performing the work.

(5) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with, it shall be treated as an infringing copy for the purpose of that dealing, and if that dealing infringes copyright for all subsequent purposes.

[F87For this purpose “dealt with” means— (a) sold or let for hire, offered or exposed for sale or hire; or (b) communicated to the public, unless that communication, by virtue of

subsection (3), is not an infringement of copyright.]

Annotations:

Amendments (Textual) F84 S. 32(1)-(2B) substituted (31.10.2003) for s. 32(1)(2) by The Copyright and Related Rights

Regulations 2003 (S.I 2003/2498), {reg. 11(a)} (with regs. 31-40) F85 Words in s. 32(3) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 11(b) (with reg. 31-40) F86 S. 32(3A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2598), reg. 11(c) (with regs. 31-40) F87 Words in s. 32(5) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 11(d) (with regs. 31-40)

33 Anthologies for educational use.

(1) The inclusion of a short passage from a published literary or dramatic work in a collection which—

(a) is intended for use in educational establishments and is so described in its title, and in any advertisements issued by or on behalf of the publisher, and

(b) consists mainly of material in which no copyright subsists, does not infringe the copyright in the work if the work itself is not intended for use in such establishments and the inclusion is accompanied by a sufficient acknowledgement.

(2) Subsection (1) does not authorise the inclusion of more than two excerpts from copyright works by the same author in collections published by the same publisher over any period of five years.

(3) In relation to any given passage the reference in subsection (2) to excerpts from works by the same author—

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(a) shall be taken to include excerpts from works by him in collaboration with another, and

(b) if the passage in question is from such a work, shall be taken to include excerpts from works by any of the authors, whether alone or in collaboration with another.

(4) References in this section to the use of a work in an educational establishment are to any use for the educational purposes of such an establishment.

34 Performing, playing or showing work in course of activities of educational establishment.

(1) The performance of a literary, dramatic or musical work before an audience consisting of teachers and pupils at an educational establishment and other persons directly connected with the activities of the establishment—

(a) by a teacher or pupil in the course of the activities of the establishment, or (b) at the establishment by any person for the purposes of instruction,

is not a public performance for the purposes of infringement of copyright.

(2) The playing or showing of a sound recording, film [F88or broadcast] before such an audience at an educational establishment for the purposes of instruction is not a playing or showing of the work in public for the purposes of infringement of copyright.

(3) A person is not for this purpose directly connected with the activities of the educational establishment simply because he is the parent of a pupil at the establishment.

Annotations:

Amendments (Textual) F88 Words in s. 34(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(f) (with regs. 31-40)

35 Recording by educational establishments of broadcasts F89. . . .

(1) A recording of a broadcast F90. . . , or a copy of such a recording, may be made by or on behalf of an educational establishment for the educational purposes of that establishment without thereby infringing the copyright in the broadcast . . . , or in any work included in it [F91, provided that it is accompanied by a sufficient acknowledgement of the broadcast and that the educational purposes are non- commercial].

[F92(1A) Copyright is not infringed where a recording of a broadcast or a copy of such a recording, whose making was by virtue of subsection (1) not an infringement of copyright, is communicated to the public by a person situated within the premises of an educational establishment provided that the communication cannot be received by any person situated outside the premises of that establishment.]

(2) This section does not apply if or to the extent that there is a licensing scheme certified for the purposes of this section under section 143 providing for the grant of licences.

(3) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with, it shall be treated as an infringing

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copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire [F93, offered or exposed for sale or hire, or communicated from within the premises of an educational establishment to any person situated outside those premises.]

Annotations:

Amendments (Textual) F89 Words in s. 35 heading repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F90 Words in s. 35(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F91 Words in s. 35(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 12(1)(a) (with regs. 31-40) F92 S. 35(1A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 12(1)(b) (with regs. 31-40) F93 Words in s. 35(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 12(1)(c) (with regs. 31-40)

Modifications etc. (not altering text) C18 Ss. 35, 36 extended by S.I. 1989/1067, art. 2

36 Reprographic copying by educational establishments of passages from published works.

(1) Reprographic copies of passages from published literary, dramatic or musical works may, to the extent permitted by this section, be made by or on behalf of an educational establishment for the purposes of instruction without infringing any copyright in the work, [F94provided that they are accompanied by a sufficient acknowledgement and the instruction is for a non-commercial purpose].

[F95(1A) No acknowledgement is required in connection with the making of copies as mentioned in subsection (1) where this would be impossible for reasons of practicality or otherwise.

(1B) Reprographic copies of passages from published editions may, to the extent permitted by this section, be made by or on behalf of an educational establishment for the purposes of instruction without infringing any copyright in the typographical arrangement of the edition.]

(2) Not more than one per cent. of any work may be copied by or on behalf of an establishment by virtue of this section in any quarter, that is, in any period 1st January to 31st March, 1st April to 30th June, 1st July to 30th September or 1st October to 31st December.

(3) Copying is not authorised by this section if, or to the extent that, licences are available authorising the copying in question and the person making the copies knew or ought to have been aware of that fact.

(4) The terms of a licence granted to an educational establishment authorising the reprographic copying for the purposes of instruction of passages from published F96. . . works are of no effect so far as they purport to restrict the proportion of a work which

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may be copied (whether on payment or free of charge) to less than that which would be permitted under this section.

(5) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire [F97, offered or exposed for sale or hire or communicated to the public.]

Annotations:

Amendments (Textual) F94 Words in s. 36(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 13(a) (with regs. 31-40) F95 S. 36(1A)(1B) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 13(b) (with regs. 31-40) F96 Words in s. 36(4) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F97 Words in s. 36(5) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 13(c) (with regs. 31-40)

Modifications etc. (not altering text) C19 Ss. 35, 36 extended by S.I. 1989/1067, art. 2

[F9836A Lending of copies by educational establishments

Annotations:

Amendments (Textual) F98 S. 36A inserted (1.12.1996) by S.I. 1996/2967, reg. 11(1) (with Pt. III)

Libraries and archives

37 Libraries and archives: introductory.

(1) In sections 38 to 43 (copying by librarians and archivists)— (a) references in any provision to a prescribed library or archive are to a library

or archive of a description prescribed for the purposes of that provision by regulations made by the Secretary of State; and

(b) references in any provision to the prescribed conditions are to the conditions so prescribed.

(2) The regulations may provide that, where a librarian or archivist is required to be satisfied as to any matter before making or supplying a copy of a work—

(a) he may rely on a signed declaration as to that matter by the person requesting the copy, unless he is aware that it is false in a material particular, and

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(b) in such cases as may be prescribed, he shall not make or supply a copy in the absence of a signed declaration in such form as may be prescribed.

(3) Where a person requesting a copy makes a declaration which is false in a material particular and is supplied with a copy which would have been an infringing copy if made by him—

(a) he is liable for infringement of copyright as if he had made the copy himself, and

(b) the copy shall be treated as an infringing copy.

(4) The regulations may make different provision for different descriptions of libraries or archives and for different purposes.

(5) Regulations shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) References in this section, and in sections 38 to 43, to the librarian or archivist include a person acting on his behalf.

38 Copying by librarians: articles in periodicals.

(1) The librarian of a prescribed library may, if the prescribed conditions are complied with, make and supply a copy of an article in a periodical without infringing any copyright in the text, in any illustrations accompanying the text or in the typographical arrangement.

(2) The prescribed conditions shall include the following— [F99(a) that copies are supplied only to persons satisfying the librarian that they

require them for the purposes of— (i) research for a non-commercial purpose, or

(ii) private study, and will not use them for any other purpose;]

(b) that no person is furnished with more than one copy of the same article or with copies of more than one article contained in the same issue of a periodical; and

(c) that persons to whom copies are supplied are required to pay for them a sum not less than the cost (including a contribution to the general expenses of the library) attributable to their production.

Annotations:

Amendments (Textual) F99 S. 38(2)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 14(1) (with regs. 31-40)

39 Copying by librarians: parts of published works.

(1) The librarian of a prescribed library may, if the prescribed conditions are complied with, make and supply from a published edition a copy of part of a literary, dramatic or musical work (other than an article in a periodical) without infringing any copyright in the work, in any illustrations accompanying the work or in the typographical arrangement.

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(2) The prescribed conditions shall include the following— [F100(a) that copies are supplied only to persons satisfying the librarian that they

require them for the purposes of— (i) research for a non-commercial purpose, or

(ii) private study, and will not use them for any other purpose;]

(b) that no person is furnished with more than one copy of the same material or with a copy of more than a reasonable proportion of any work; and

Annotations:

Amendments (Textual) F100 S. 39(2)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 14(1) (with regs. 31-40)

40 Restriction on production of multiple copies of the same material.

(1) Regulations for the purposes of sections 38 and 39 (copying by librarian of article or part of published work) shall contain provision to the effect that a copy shall be supplied only to a person satisfying the librarian that his requirement is not related to any similar requirement of another person.

(2) The regulations may provide— (a) that requirements shall be regarded as similar if the requirements are for

copies of substantially the same material at substantially the same time and for substantially the same purpose; and

(b) that requirements of persons shall be regarded as related if those persons receive instruction to which the material is relevant at the same time and place.

[F10140A Lending of copies by libraries or archives.

(1) Copyright in a work of any description is not infringed by the lending of a book by a public library if the book is within the public lending right scheme. For this purpose—

(a) “the public lending right scheme” means the scheme in force under section 1 of the Public Lending Right Act 1979, and

(b) a book is within the public lending right scheme if it is a book within the meaning of the provisions of the scheme relating to eligibility, whether or not it is in fact eligible.

(2) Copyright in a work is not infringed by the lending of copies of the work by a prescribed library or archive (other than a public library) which is not conducted for profit.]

Annotations:

Amendments (Textual) F101 S. 40A inserted (1.12.1996) by S.I. 1996/2967, reg. 11(2) (with Pt. III)

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Modifications etc. (not altering text) C20 S. 40A(2) modified (1.12.1996) by S.I. 1996/2967, reg. 35 (with Pt. III)

41 Copying by librarians: supply of copies to other libraries.

(1) The librarian of a prescribed library may, if the prescribed conditions are complied with, make and supply to another prescribed library a copy of—

(a) an article in a periodical, or (b) the whole or part of a published edition of a literary, dramatic or musical work,

without infringing any copyright in the text of the article or, as the case may be, in the work, in any illustrations accompanying it or in the typographical arrangement.

(2) Subsection (1)(b) does not apply if at the time the copy is made the librarian making it knows, or could by reasonable inquiry ascertain, the name and address of a person entitled to authorise the making of the copy.

42 Copying by librarians or archivists: replacement copies of works.

(1) The librarian or archivist of a prescribed library or archive may, if the prescribed conditions are complied with, make a copy from any item in the permanent collection of the library or archive—

(a) in order to preserve or replace that item by placing the copy in its permanent collection in addition to or in place of it, or

(b) in order to replace in the permanent collection of another prescribed library or archive an item which has been lost, destroyed or damaged,

without infringing the copyright in any literary, dramatic or musical work, in any illustrations accompanying such a work or, in the case of a published edition, in the typographical arrangement.

(2) The prescribed conditions shall include provision for restricting the making of copies to cases where it is not reasonably practicable to purchase a copy of the item in question to fulfil that purpose.

43 Copying by librarians or archivists: certain unpublished works.

(1) The librarian or archivist of a prescribed library or archive may, if the prescribed conditions are complied with, make and supply a copy of the whole or part of a literary, dramatic or musical work from a document in the library or archive without infringing any copyright in the work or any illustrations accompanying it.

(2) This section does not apply if— (a) the work had been published before the document was deposited in the library

or archive, or (b) the copyright owner has prohibited copying of the work,

and at the time the copy is made the librarian or archivist making it is, or ought to be, aware of that fact.

(3) The prescribed conditions shall include the following— [F102(a) that copies are supplied only to persons satisfying the librarian or archivist

that they require them for the purposes of—

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(i) research for a non-commercial purpose, or (ii) private study,

and will not use them for any other purpose;] (b) that no person is furnished with more than one copy of the same material; and (c) that persons to whom copies are supplied are required to pay for them a sum

not less than the cost (including a contribution to the general expenses of the library or archive) attributable to their production.

Annotations:

Amendments (Textual) F102 S. 43(3)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 14(2) (with regs. 31-40)

44 Copy of work required to be made as condition of export.

If an article of cultural or historical importance or interest cannot lawfully be exported from the United Kingdom unless a copy of it is made and deposited in an appropriate library or archive, it is not an infringement of copyright to make that copy.

[F10344A Legal deposit libraries

(1) Copyright is not infringed by the copying of a work from the internet by a deposit library or person acting on its behalf if—

(a) the work is of a description prescribed by regulations under section 10(5) of the 2003 Act,

(b) its publication on the internet, or a person publishing it there, is connected with the United Kingdom in a manner so prescribed, and

(2) Copyright is not infringed by the doing of anything in relation to relevant material permitted to be done under regulations under section 7 of the 2003 Act.

(3) The Secretary of State may by regulations make provision excluding, in relation to prescribed activities done in relation to relevant material, the application of such of the provisions of this Chapter as are prescribed.

(4) Regulations under subsection (3) may in particular make provision prescribing activities—

(a) done for a prescribed purpose, (b) done by prescribed descriptions of reader, (c) done in relation to prescribed descriptions of relevant material, (d) done other than in accordance with prescribed conditions.

(5) Regulations under this section may make different provision for different purposes.

(6) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) In this section— (a) “the 2003 Act” means the Legal Deposit Libraries Act 2003;

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(b) “deposit library”, “reader” and “relevant material” have the same meaning as in section 7 of the 2003 Act;

Annotations:

Amendments (Textual) F103 S. 44A inserted (1.2.2004) by Legal Deposit Libraries Act 2003 (c. 28), ss. 8(1), 16(1) (with s. 16(4));

S.I. 2004/130, art. 2

Public administration

45 Parliamentary and judicial proceedings.

(1) Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings.

(2) Copyright is not infringed by anything done for the purposes of reporting such proceedings; but this shall not be construed as authorising the copying of a work which is itself a published report of the proceedings.

46 Royal Commissions and statutory inquiries.

(1) Copyright is not infringed by anything done for the purposes of the proceedings of a Royal Commission or statutory inquiry.

(2) Copyright is not infringed by anything done for the purpose of reporting any such proceedings held in public; but this shall not be construed as authorising the copying of a work which is itself a published report of the proceedings.

(3) Copyright in a work is not infringed by the issue to the public of copies of the report of a Royal Commission or statutory inquiry containing the work or material from it.

(4) In this section— “Royal Commission” includes a Commission appointed for Northern

Ireland by the Secretary of State in pursuance of the prerogative powers of Her Majesty delegated to him under section 7(2) of the M2Northern Ireland Constitution Act 1973; and

“statutory inquiry” means an inquiry held or investigation conducted in pursuance of a duty imposed or power conferred by or under an enactment.

Annotations:

Marginal Citations M2 1973 c. 36.

47 Material open to public inspection or on official register.

(1) Where material is open to public inspection pursuant to a statutory requirement, or is on a statutory register, any copyright in the material as a literary work is not infringed by the copying of so much of the material as contains factual information of any

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description, by or with the authority of the appropriate person, for a purpose which does not involve the issuing of copies to the public.

(2) Where material is open to public inspection pursuant to a statutory requirement, copyright is not infringed by the copying or issuing to the public of copies of the material, by or with the authority of the appropriate person, for the purpose of enabling the material to be inspected at a more convenient time or place or otherwise facilitating the exercise of any right for the purpose of which the requirement is imposed.

(3) Where material which is open to public inspection pursuant to a statutory requirement, or which is on a statutory register, contains information about matters of general scientific, technical, commercial or economic interest, copyright is not infringed by the copying or issuing to the public of copies of the material, by or with the authority of the appropriate person, for the purpose of disseminating that information.

(4) The Secretary of State may by order provide that subsection (1), (2) or (3) shall, in such cases as may be specified in the order, apply only to copies marked in such manner as may be so specified.

(5) The Secretary of State may by order provide that subsections (1) to (3) apply, to such extent and with such modifications as may be specified in the order—

(a) to material made open to public inspection by— (i) an international organisation specified in the order, or

(ii) a person so specified who has functions in the United Kingdom under an international agreement to which the United Kingdom is party, or

(b) to a register maintained by an international organisation specified in the order, as they apply in relation to material open to public inspection pursuant to a statutory requirement or to a statutory register.

(6) In this section— “appropriate person” means the person required to make the material open

to public inspection or, as the case may be, the person maintaining the register; “statutory register” means a register maintained in pursuance of a statutory

requirement; and “statutory requirement” means a requirement imposed by provision made

by or under an enactment.

(7) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Annotations:

Modifications etc. (not altering text) C21 S. 47(1) extended with modifications by S.I. 1989/1098, art. 2 C22 S. 47(2) modified by S.I. 1990/1427, art. 2 C23 S. 47(2)(3) extended with modifications by S.I. 1989/1098, art. 2 C24 S. 47(2)(3) modified by S.I. 1989/1099, art. 2 C25 S. 47(6) modified (1.3.2010) by The Scottish Register of Tartans Act 2008 (Consequential

Modifications) Order 2010 (S.I. 2010/180), art. 2(2) (with art. 2(4))

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48 Material communicated to the Crown in the course of public business.

(1) This section applies where a literary, dramatic, musical or artistic work has in the course of public business been communicated to the Crown for any purpose, by or with the licence of the copyright owner and a document or other material thing recording or embodying the work is owned by or in the custody or control of the Crown.

(2) The Crown may, for the purpose for which the work was communicated to it, or any related purpose which could reasonably have been anticipated by the copyright owner, copy the work and issue copies of the work to the public without infringing any copyright in the work.

(3) The Crown may not copy a work, or issue copies of a work to the public, by virtue of this section if the work has previously been published otherwise than by virtue of this section.

(4) In subsection (1) “public business” includes any activity carried on by the Crown.

(5) This section has effect subject to any agreement to the contrary between the Crown and the copyright owner.

[F104(6) In this section “the Crown” includes a health service body, as defined in section 60(7) of the National Health Service and Community Care Act 1990, [F105a Primary Care Trust established under [F106section 18 of the National Health Service Act 2006],][F107the Care Quality Commission] and a National Health Service trust established under [F108section 25 of the National Health Service Act 2006, section 18 of the National Health Service (Wales) Act 2006] or the National Health Service (Scotland) Act 1978 [F109and an NHS foundation trust][F110and also includes a health and social services body, as defined in Article 7(6) of the Health and Personal Social Services (Northern Ireland) Order 1991, and a Health and Social Services trust established under that Order], and the reference in subsection (1) above to public business shall be construed accordingly.]

Annotations:

Amendments (Textual) F104 S. 48(6) added by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 60(2),

Sch. 8 para. 3 F105 Words in s. 48(6) inserted (8.2.2000) by S.I. 2000/90, art. 3(1), Sch. 1 para. 22 F106 Words in s. 48(6) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act

2006 (c. 43), ss. 2, 8, Sch. 1 para. 112(a) (with s. 5, Sch. 3 Pt. 1) F107 Words in s. 48(6) substituted (1.4.2009) by Health and Social Care Act 2008 (c. 14), ss. 95, 170(3),

Sch. 5 para. 60; S.I. 2009/462, art. 2, Sch. 1 paras. 30, 35(x) F108 Words in s. 48(6) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act

2006, (c. 43), ss. 2, 8, {Sch. 1 para. 112(b)} (with s. 5, Sch. 3 Pt. 1) F109 Words in s. 48(6) inserted (1.4.2004) by Health and Social Care (Community Health and Standards)

Act 2003 (c. 43), ss. 34, 199(1), Sch. 4 para. 72; S.I. 2004/759, art. 2 F110 Words in s. 48(6) inserted (1.4.1992) by S.I. 1991/194, art. 7(2), Sch. 2 Pt. I para. 3; S.R. 1991/131,

art. 2(e), Sch. Pt. III

Modifications etc. (not altering text) C26 S. 48: functions made exercisable by Local Health Boards (E.W.) (1.10.2009) by The Local Health

Boards (Directed Functions) (Wales) Regulations 2009 (S.I. 2009/1511), reg. 4, Sch. (subject to reg. 5)

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C27 S. 48(6) modified (temp. from 1.10.2008) by The Health and Social Care Act 2008 (Consequential Amendments and Transitory Provisions) Order 2008 (S.I. 2008/2250), art. 3(3)

49 Public records.

Material which is comprised in public records within the meaning of the M3Public Records Act 1958, the M4Public Records (Scotland) Act 1937 or the M5Public Records Act (Northern Ireland) 1923 [F111, or in Welsh public records (as defined in the [F112the Government of Wales Act 2006]),] which are open to public inspection in pursuance of that Act, may be copied, and a copy may be supplied to any person, by or with the authority of any officer appointed under that Act, without infringement of copyright.

Annotations:

Amendments (Textual) F111 Words in s. 49 inserted (1.4.1999) by 1998 c. 38, s. 125, Sch. 12 para. 27 (with ss. 139(2), 143(2));

S.I. 1999/782, art. 2 F112 Words in s. 49 substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 24

(with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

Marginal Citations M3 1958 c. 51. M4 1937 c. 43. M5 1923 c. 20 (N.I.).

50 Acts done under statutory authority.

(1) Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright.

(2) Subsection (1) applies in relation to an enactment contained in Northern Ireland legislation as it applies in relation to an Act of Parliament.

(3) Nothing in this section shall be construed as excluding any defence of statutory authority otherwise available under or by virtue of any enactment.

Annotations:

Modifications etc. (not altering text) C28 S. 50 applied by Freedom of Information Act 2000 (c. 36), s. 80(3) (as added (1.1.2005) by The

Freedom of Information (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004/3089), art. 3(2))

C29 S. 50(1) modified (1.3.2010) by The Scottish Register of Tartans Act 2008 (Consequential Modifications) Order 2010 (S.I. 2010/180), art. 2(3) (with art. 2(4))

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[F113Computer programs: lawful users

Annotations:

Amendments (Textual) F113 Cross-heading and ss. 50A-50C inserted (1.1.1993) by S.I. 1992/3233, reg.8.

F11450A Back up copies.

(1) It is not an infringement of copyright for a lawful user of a copy of a computer program to make any back up copy of it which it is necessary for him to have for the purposes of his lawful use.

(2) For the purposes of this section and sections 50B [F115, 50BA] and 50C a person is a lawful user of a computer program if (whether under a licence to do any acts restricted by the copyright in the program or otherwise), he has a right to use the program.

(3) Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).

Annotations:

Amendments (Textual) F114 Ss. 50A-50C inserted (1.1.1993) by S.I. 1992/3233, reg.8. F115 S. 50A(2): ", 50BA" inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 15(2) (with regs. 31-40)

F11650B Decompilation.

(1) It is not an infringement of copyright for a lawful user of a copy of a computer program expressed in a low level language—

(a) to convert it into a version expressed in a higher level language, or (b) incidentally in the course of so converting the program, to copy it,

(that is, to “decompile” it), provided that the conditions in subsection (2) are met.

(2) The conditions are that— (a) it is necessary to decompile the program to obtain the information necessary

to create an independent program which can be operated with the program decompiled or with another program (“the permitted objective”); and

(b) the information so obtained is not used for any purpose other than the permitted objective.

(3) In particular, the conditions in subsection (2) are not met if the lawful user— (a) has readily available to him the information necessary to achieve the permitted

objective; (b) does not confine the decompiling to such acts as are necessary to achieve the

permitted objective; (c) supplies the information obtained by the decompiling to any person to whom

it is not necessary to supply it in order to achieve the permitted objective; or

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(d) uses the information to create a program which is substantially similar in its expression to the program decompiled or to do any act restricted by copyright.

(4) Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).

Annotations:

Amendments (Textual) F116 Ss. 50A-50C inserted (1.1.1993) by S.I. 1992/3233, reg.8.

50BA Observing, studying and testing of computer programs

(1) It is not an infringement of copyright for a lawful user of a copy of a computer program to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.

(2) Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).]

Annotations:

Amendments (Textual) F117 S. 50BA inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 15(1) (with regs. 31-40)

F11850C Other acts permitted to lawful users.

(1) It is not an infringement of copyright for a lawful user of a copy of a computer program to copy or adapt it, provided that the copying or adapting—

(a) is necessary for his lawful use; and (b) is not prohibited under any term or condition of an agreement regulating the

circumstances in which his use is lawful.

(2) It may, in particular, be necessary for the lawful use of a computer program to copy it or adapt it for the purpose of correcting errors in it.

(3) This section does not apply to any copying or adapting permitted under [F119section 50A, 50B or 50BA].]

Annotations:

Amendments (Textual) F118 Ss. 50A-50C inserted (1.1.1993) by S.I. 1992/3233, reg.8. F119 Words in s. 50C(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 15(3) (with regs. 31-40)

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[F120Databases: permitted acts]

Annotations:

Amendments (Textual) F120 S. 50D and crossheading inserted (1.1.1998) by S.I. 1997/3032, reg. 9 (with Pt. IV)

[F12150D Acts permitted in relation to databases.

(1) It is not an infringement of copyright in a database for a person who has a right to use the database or any part of the database, (whether under a licence to do any of the acts restricted by the copyright in the database or otherwise) to do, in the exercise of that right, anything which is necessary for the purposes of access to and use of the contents of the database or of that part of the database.

(2) Where an act which would otherwise infringe copyright in a database is permitted under this section, it is irrelevant whether or not there exists any term or condition in any agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296B, void).]

Annotations:

Amendments (Textual) F121 S. 50D inserted (1.1.1998) by S.I. 1997/3032, reg. 9 (with Pt. IV)

Designs

51 Design documents and models.

(1) It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.

(2) Nor is it an infringement of the copyright to issue to the public, or include in a film [F122or communicate to the public], anything the making of which was, by virtue of subsection (1), not an infringement of that copyright.

(3) In this section— “design” means the design of any aspect of the shape or configuration

(whether internal or external) of the whole or part of an article, other than surface decoration; and

“design document” means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise.

Annotations:

Amendments (Textual) F122 Words in s. 51(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(3) (with regs. 31-40)

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52 Effect of exploitation of design derived from artistic work.

(1) This section applies where an artistic work has been exploited, by or with the licence of the copyright owner, by—

(a) making by an industrial process articles falling to be treated for the purposes of this Part as copies of the work, and

(b) marketing such articles, in the United Kingdom or elsewhere.

(2) After the end of the period of 25 years from the end of the calendar year in which such articles are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.

(3) Where only part of an artistic work is exploited as mentioned in subsection (1), subsection (2) applies only in relation to that part.

(4) The Secretary of State may by order make provision— (a) as to the circumstances in which an article, or any description of article, is to

be regarded for the purposes of this section as made by an industrial process; (b) excluding from the operation of this section such articles of a primarily literary

or artistic character as he thinks fit.

(5) An order shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) In this section— (a) references to articles do not include films; and (b) references to the marketing of an article are to its being sold or let for hire or

offered or exposed for sale or hire.

Annotations:

Modifications etc. (not altering text) C30 S. 52 excluded by S.I. 1989/1070, art. 3

53 Things done in reliance on registration of design.

(1) The copyright in an artistic work is not infringed by anything done— (a) in pursuance of an assignment or licence made or granted by a person

registered under the M6Registered Designs Act 1949 as the proprietor of a corresponding design, and

(b) in good faith in reliance on the registration and without notice of any proceedings for the cancellation [F123or invalidation] of the registration or for rectifying the relevant entry in the register of designs;

and this is so notwithstanding that the person registered as the proprietor was not the proprietor of the design for the purposes of the 1949 Act.

(2) In subsection (1) a “corresponding design”, in relation to an artistic work, means a design within the meaning of the 1949 Act which if applied to an article would produce something which would be treated for the purposes of this Part as a copy of the artistic work.

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Annotations:

Amendments (Textual) F123 Words in s. 53(1)(b) inserted (9.12.2001) by S.I. 2001/3949, reg. 9(1), Sch. 1 para. 16 (with

transitional provisions in regs. 10-14)

Marginal Citations M6 1949 c. 88.

Typefaces

54 Use of typeface in ordinary course of printing.

(1) It is not an infringement of copyright in an artistic work consisting of the design of a typeface—

(a) to use the typeface in the ordinary course of typing, composing text, typesetting or printing,

(b) to possess an article for the purpose of such use, or (c) to do anything in relation to material produced by such use;

and this is so notwithstanding that an article is used which is an infringing copy of the work.

(2) However, the following provisions of this Part apply in relation to persons making, importing or dealing with articles specifically designed or adapted for producing material in a particular typeface, or possessing such articles for the purpose of dealing with them, as if the production of material as mentioned in subsection (1) did infringe copyright in the artistic work consisting of the design of the typeface—

section 24 (secondary infringement: making, importing, possessing or dealing with article for making infringing copy), sections 99 and 100 (order for delivery up and right of seizure), section 107(2) (offence of making or possessing such an article), and section 108 (order for delivery up in criminal proceedings).

(3) The references in subsection (2) to “dealing with” an article are to selling, letting for hire, or offering or exposing for sale or hire, exhibiting in public, or distributing.

55 Articles for producing material in particular typeface.

(1) This section applies to the copyright in an artistic work consisting of the design of a typeface where articles specifically designed or adapted for producing material in that typeface have been marketed by or with the licence of the copyright owner.

(2) After the period of 25 years from the end of the calendar year in which the first such articles are marketed, the work may be copied by making further such articles, or doing anything for the purpose of making such articles, and anything may be done in relation to articles so made, without infringing copyright in the work.

(3) In subsection (1) “marketed” means sold, let for hire or offered or exposed for sale or hire, in the United Kingdom or elsewhere.

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Works in electronic form

56 Transfers of copies of works in electronic form.

(1) This section applies where a copy of a work in electronic form has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to copy the work, or to adapt it or make copies of an adaptation, in connection with his use of it.

(2) If there are no express terms— (a) prohibiting the transfer of the copy by the purchaser, imposing obligations

which continue after a transfer, prohibiting the assignment of any licence or terminating any licence on a transfer, or

(b) providing for the terms on which a transferee may do the things which the purchaser was permitted to do,

anything which the purchaser was allowed to do may also be done without infringement of copyright by a transferee; but any copy, adaptation or copy of an adaptation made by the purchaser which is not also transferred shall be treated as an infringing copy for all purposes after the transfer.

(3) The same applies where the original purchased copy is no longer usable and what is transferred is a further copy used in its place.

(4) The above provisions also apply on a subsequent transfer, with the substitution for references in subsection (2) to the purchaser of references to the subsequent transferor.

Miscellaneous: literary, dramatic, musical and artistic works

57 Anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author.

(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when—

(a) it is not possible by reasonable inquiry to ascertain the identity of the author, and

(b) it is reasonable to assume— (i) that copyright has expired, or

(ii) that the author died [F12470 years] or more before the beginning of the calendar year in which the act is done or the arrangements are made.

(2) Subsection (1)(b)(ii) does not apply in relation to— (a) a work in which Crown copyright subsists, or (b) a work in which copyright originally vested in an international organisation

by virtue of section 168 and in respect of which an Order under that section specifies a copyright period longer than [F12470 years].

(3) In relation to a work of joint authorship— (a) the reference in subsection (1) to its being possible to ascertain the identity of

the author shall be construed as a reference to its being possible to ascertain the identity of any of the authors, and

(b) the reference in subsection (1)(b)(ii) to the author having died shall be construed as a reference to all the authors having died.

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Annotations:

Amendments (Textual) F124 Words in s. 57(1)(b)(ii)(2)(b) substituted (with saving) (1.1.1996) by S.I. 1995/3297, regs. 5(2), 15(2)

(with Pt. III)

58 Use of notes or recordings of spoken words in certain cases.

(1) Where a record of spoken words is made, in writing or otherwise, for the purpose— (a) of reporting current events, or (b) of [F125communicating to the public] the whole or part of the work,

it is not an infringement of any copyright in the words as a literary work to use the record or material taken from it (or to copy the record, or any such material, and use the copy) for that purpose, provided the following conditions are met.

(2) The conditions are that— (a) the record is a direct record of the spoken words and is not taken from a

previous record or from a broadcast F126. . . ; (b) the making of the record was not prohibited by the speaker and, where

copyright already subsisted in the work, did not infringe copyright; (c) the use made of the record or material taken from it is not of a kind prohibited

by or on behalf of the speaker or copyright owner before the record was made; and

(d) the use is by or with the authority of a person who is lawfully in possession of the record.

Annotations:

Amendments (Textual) F125 Words in s. 58(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 12(a) (with regs. 31-40) F126 Words in s. 58(2)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

59 Public reading or recitation.

(1) The reading or recitation in public by one person of a reasonable extract from a published literary or dramatic work does not infringe any copyright in the work if it is accompanied by a sufficient acknowledgement.

(2) Copyright in a work is not infringed by the making of a sound recording, or the [F127communication to the public], of a reading or recitation which by virtue of subsection (1) does not infringe copyright in the work, provided that the recording [F128or communication to the public] consists mainly of material in relation to which it is not necessary to rely on that subsection.

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Annotations:

Amendments (Textual) F127 Words in s. 59(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 5(b) (with regs. 31-40) F128 Words in s. 59(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 9(1)(a) (with regs. 31-40)

60 Abstracts of scientific or technical articles.

(1) Where an article on a scientific or technical subject is published in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of copyright in the abstract, or in the article, to copy the abstract or issue copies of it to the public.

(2) This section does not apply if or to the extent that there is a licensing scheme certified for the purposes of this section under section 143 providing for the grant of licences.

61 Recordings of folksongs.

(1) A sound recording of a performance of a song may be made for the purpose of including it in an archive maintained by a designated body without infringing any copyright in the words as a literary work or in the accompanying musical work, provided the conditions in subsection (2) below are met.

(2) The conditions are that— (a) the words are unpublished and of unknown authorship at the time the

recording is made, (b) the making of the recording does not infringe any other copyright, and (c) its making is not prohibited by any performer.

(3) Copies of a sound recording made in reliance on subsection (1) and included in an archive maintained by a designated body may, if the prescribed conditions are met, be made and supplied by the archivist without infringing copyright in the recording or the works included in it.

(4) The prescribed conditions shall include the following— [F129(a) that copies are only supplied to persons satisfying the archivist that they

require them for the purposes of— (i) research for a non-commercial purpose, or

(ii) private study, and will not use them for any other purpose, and.]

(b) that no person is furnished with more than one copy of the same recording.

(5) In this section— (a) “designated” means designated for the purposes of this section by order of the

Secretary of State, who shall not designate a body unless satisfied that it is not established or conducted for profit,

(b) “prescribed” means prescribed for the purposes of this section by order of the Secretary of State, and

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(6) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Annotations:

Amendments (Textual) F129 S. 61(4)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 16 (with regs. 31-40)

62 Representation of certain artistic works on public display.

(1) This section applies to— (a) buildings, and (b) sculptures, models for buildings and works of artistic craftsmanship, if

permanently situated in a public place or in premises open to the public.

(2) The copyright in such a work is not infringed by— (a) making a graphic work representing it, (b) making a photograph or film of it, or (c) [F130making a broadcast of] a visual image of it.

(3) Nor is the copyright infringed by the issue to the public of copies, or the [F131communication to the public], of anything whose making was, by virtue of this section, not an infringement of the copyright.

Annotations:

Amendments (Textual) F130 Words in s. 62(2)(c) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 14 (with regs. 31-40) F131 Words in s. 62(3)(c) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 5(c) (with regs. 31-40)

63 Advertisement of sale of artistic work.

(1) It is not an infringement of copyright in an artistic work to copy it, or to issue copies to the public, for the purpose of advertising the sale of the work.

(2) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with for any other purpose, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire, offered or exposed for sale or hire, exhibited in public [F132, distributed or communicated to the public].

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Annotations:

Amendments (Textual) F132 Words in s. 63(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 17 (with regs. 31-40)

64 Making of subsequent works by same artist.

Where the author of an artistic work is not the copyright owner, he does not infringe the copyright by copying the work in making another artistic work, provided he does not repeat or imitate the main design of the earlier work.

65 Reconstruction of buildings.

Anything done for the purposes of reconstructing a building does not infringe any copyright—

(a) in the building, or (b) in any drawings or plans in accordance with which the building was, by or

with the licence of the copyright owner, constructed.

[F133Miscellaneous: lending of works and playing of sound recordings]

Annotations:

Amendments (Textual) F133 S. 66 and crossheading substituted (1.12.1996) by S.I. 1996/2967, reg. 11(3) (with Pt. III)

[F13466 Lending to public of copies of certain works.

(1) The Secretary of State may by order provide that in such cases as may be specified in the order the lending to the public of copies of literary, dramatic, musical or artistic works, sound recordings or films shall be treated as licensed by the copyright owner subject only to the payment of such reasonable royalty or other payment as may be agreed or determined in default of agreement by the Copyright Tribunal.

(2) No such order shall apply if, or to the extent that, there is a licensing scheme certified for the purposes of this section under section 143 providing for the grant of licences.

(3) An order may make different provision for different cases and may specify cases by reference to any factor relating to the work, the copies lent, the lender or the circumstances of the lending.

(4) An order shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

(5) Nothing in this section affects any liability under section 23 (secondary infringement: possessing or dealing with infringing copy) in respect of the lending of infringing copies.]

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Annotations:

Amendments (Textual) F134 S. 66 substituted (1.12.1996) by S.I. 1996/2967, reg. 11(3) (with Pt. III)

[F135MISCellaneous: films and sound recordings]

Annotations:

Amendments (Textual) F135 S. 66A and crossheading inserted (1.1.1996) by S.I. 1995/3297, reg. 6(2) (with Pt. III)

[F13666A Films: acts permitted on assumptions as to expiry of copyright, &c.

(1) Copyright in a film is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when—

(a) it is not possible by reasonable inquiry to ascertain the identity of any of the persons referred to in section 13B(2)(a) to (d) (persons by reference to whose life the copyright period is ascertained), and

(b) it is reasonable to assume— (i) that copyright has expired, or

(ii) that the last to die of those persons died 70 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.

(2) Subsection (1)(b)(ii) does not apply in relation to— (a) a film in which Crown copyright subsists, or (b) a film in which copyright originally vested in an international organisation

by virtue of section 168 and in respect of which an Order under that section specifies a copyright period longer than 70 years.]

Annotations:

Amendments (Textual) F136 S. 66A inserted (1.1.1996) by S.I. 1995/3297, reg. 6(2) (with Pt. III)

67 Playing of sound recordings for purposes of club, society, &c. F137. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F137 S. 67 omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988 (Amendment)

Regulations 2010 (S.I. 2010/2694), art. 3(1)

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Miscellaneous: broadcasts F138. . .

Annotations:

Amendments (Textual) F138 Words in heading before s. 68 repealed (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 32, 33)

68 Incidental recording for purposes of broadcast F139. . . .

(1) This section applies where by virtue of a licence or assignment of copyright a person is authorised to broadcast F140. . . —

(a) a literary, dramatic or musical work, or an adaptation of such a work, (b) an artistic work, or (c) a sound recording or film.

(2) He shall by virtue of this section be treated as licensed by the owner of the copyright in the work to do or authorise any of the following for the purposes of the broadcast . . . —

(a) in the case of a literary, dramatic or musical work, or an adaptation of such a work, to make a sound recording or film of the work or adaptation;

(b) in the case of an artistic work, to take a photograph or make a film of the work; (c) in the case of a sound recording or film, to make a copy of it.

(3) That licence is subject to the condition that the recording, film, photograph or copy in question—

(a) shall not be used for any other purpose, and (b) shall be destroyed within 28 days of being first used for broadcasting the

work . . . .

(4) A recording, film, photograph or copy made in accordance with this section shall be treated as an infringing copy—

(a) for the purposes of any use in breach of the condition mentioned in subsection (3)(a), and

(b) for all purposes after that condition or the condition mentioned in subsection (3)(b) is broken.

Annotations:

Amendments (Textual) F139 Words in s. 68 heading repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F140 Words in s. 68(1)(2)(3)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

69 Recording for purposes of supervision and control of broadcasts and [F141other services].

(1) Copyright is not infringed by the making or use by the British Broadcasting Corporation, for the purpose of maintaining supervision and control over programmes

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broadcast by them [F142or included in any on-demand programme service provided by them], of recordings of those programmes.

[F143F144(2) Copyright is not infringed by anything done in pursuance of— [F145(a) section 167(1) of the Broadcasting Act 1990, section 115(4) or (6) or

117 of the Broadcasting Act 1996 or paragraph 20 of Schedule 12 to the Communications Act 2003;]

(b) a condition which, [F146by virtue of section 334(1) of the Communications Act 2003], is included in a licence granted under Part I or III of that Act or Part I or II of the Broadcasting Act 1996; F147. . .

(c) a direction given under section 109(2) of the Broadcasting Act 1990 (power of [F148OFCOM] to require production of recordings etc).

[F149(d) section 334(3) [F150, 368O(1) or (3)] of the Communications Act 2003.]

[F143(3) Copyright is not infringed by the use by OFCOM in connection with the performance of any of their functions under the Broadcasting Act 1990, the Broadcasting Act 1996 or the Communications Act 2003 of—

(a) any recording, script or transcript which is provided to them under or by virtue of any provision of those Acts; or

(b) any existing material which is transferred to them by a scheme made under section 30 of the Communications Act 2003.]]

(4) In subsection (3), “existing material” means— (a) any recording, script or transcript which was provided to the Independent

Television Commission or the Radio Authority under or by virtue of any provision of the Broadcasting Act 1990 or the Broadcasting Act 1996; and

(b) any recording or transcript which was provided to the Broadcasting Standards Commission under section 115(4) or (6) or 116(5) of the Broadcasting Act 1996.

[F151(5) Copyright is not infringed by the use by an appropriate regulatory authority designated under section 368B of the Communications Act 2003, in connection with the performance of any of their functions under that Act, of any recording, script or transcript which is provided to them under or by virtue of any provision of that Act.

(6) In this section “on-demand programme service” has the same meaning as in the Communications Act 2003 (see section 368A of that Act).]

Annotations:

Amendments (Textual) F141 Words in s. 69 heading substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 2(1) (with regs. 31-40) F142 Words in s. 69(1) inserted (19.12.2009) by The Audiovisual Media Services Regulations 2009 (S.I.

2009/2979), reg. 12(2)(a) F143 S. 69(3)(4) substituted (29.12.2003) for s. 69(3) by Communications Act 2003 (c. 21), ss. 406, 411,

Sch. 17 para. 91(3) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F144 S. 69(2)(3) substituted (1.10.1996 for specified purposes and otherwise 1.4.1997) by 1996 c. 55, s.

148(1), Sch. 10 Pt. III para. 31 (with s. 43(6)); S.I. 1996/2120, art. 4, Sch. 1; S.I. 1997/1005, art. 4 F145 S. 69(2)(a) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch. 17 para.

91(2)(a) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F146 Words in s. 69(2)(b) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch.

17 para. 91(2)(b) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11)

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F147 Word in s. 69(2)(b) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch. 19(1) (with Sch. 18, Sch. 19(1) Note 1); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11)

F148 Words in s. 69(2)(c) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch. 17 para. 91(2)(c) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11)

F149 S. 69(2)(d) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch. 17 para. 91(2)(d) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11)

F150 Words in s. 69(2)(d) inserted (19.12.2009) by The Audiovisual Media Services Regulations 2009 (S.I. 2009/2979), reg. 12(2)(b)

F151 S. 69(5)(6) inserted (19.12.2009) by The Audiovisual Media Services Regulations 2009 (S.I. 2009/2979), reg. 12(2)(c)

Modifications etc. (not altering text) C31 S. 69 modified (20.7.2004) The Contracting Out (Functions relating to Broadcast Advertising) and

Specification of Relevant Functions Order 2004 (S.I. 2004/1975), art. 9(1)(2) (with reg. 5)

70 Recording for purposes of time-shifting.

[F152(1)] The making [F153 in domestic premises] for private and domestic use of a recording of a broadcast F154. . . solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe any copyright in the broadcast . . . or in any work included in it.

[F155(2) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with—

(a) it shall be treated as an infringing copy for the purposes of that dealing; and (b) if that dealing infringes copyright, it shall be treated as an infringing copy for

all subsequent purposes.

(3) In subsection (2), “dealt with” means sold or let for hire, offered or exposed for sale or hire or communicated to the public.]

Annotations:

Amendments (Textual) F152 S. 70 renumbered (31.10.2003) as s. 70(1) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 19(1) (with regs. 31-40) F153 Words in s. 70(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 19(2) (with regs. 31-40) F154 Words in s. 70(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F155 S. 70(2)(3) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 19(2) (with regs. 31-40)

[F15671 Photographs of broadcasts

(1) The making in domestic premises for private and domestic use of a photograph of the whole or any part of an image forming part of a broadcast, or a copy of such a photograph, does not infringe any copyright in the broadcast or in any film included in it.

(2) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with—

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(a) it shall be treated as an infringing copy for the purposes of that dealing; and (b) if that dealing infringes copyright, it shall be treated as an infringing copy for

all subsequent purposes.

(3) In subsection (2), “dealt with” means sold or let for hire, offered or exposed for sale or hire or communicated to the public.]

Annotations:

Amendments (Textual) F156 S. 71 substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 20(1) (with regs. 31-40)

72 Free public showing or playing of broadcast F157. . . .

(1) The showing or playing in public of a broadcast F158. . . to an audience who have not paid for admission to the place where the broadcast . . . is to be seen or heard does not infringe any copyright in—

[F159(a) the broadcast; (b) any sound recording (except so far as it is an excepted sound recording)

included in it; or (c) any film included in it.]

[F160(1A) For the purposes of this Part an “excepted sound recording” is a sound recording— (a) whose author is not the author of the broadcast in which it is included; and (b) which is a recording of music with or without words spoken or sung.

(1B) Where by virtue of subsection (1) the copyright in a broadcast shown or played in public is not infringed, copyright in any excepted sound recording included in it is not infringed if the playing or showing of that broadcast in public—

(a) F161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) is necessary for the purposes of—

(i) repairing equipment for the reception of broadcasts; (ii) demonstrating that a repair to such equipment has been carried out; or

(iii) demonstrating such equipment which is being sold or let for hire or offered or exposed for sale or hire.]

(2) The audience shall be treated as having paid for admission to a place— (a) if they have paid for admission to a place of which that place forms part; or (b) if goods or services are supplied at that place (or a place of which it forms

part)— (i) at prices which are substantially attributable to the facilities afforded

for seeing or hearing the broadcast F162. . . , or (ii) at prices exceeding those usually charged there and which are partly

attributable to those facilities.

(3) The following shall not be regarded as having paid for admission to a place— (a) persons admitted as residents or inmates of the place; (b) persons admitted as members of a club or society where the payment is only

for membership of the club or society and the provision of facilities for seeing

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or hearing broadcasts F163. . . is only incidental to the main purposes of the club or society.

(4) Where the making of the broadcast F164. . . was an infringement of the copyright in a sound recording or film, the fact that it was heard or seen in public by the reception of the broadcast . . . shall be taken into account in assessing the damages for that infringement.

Annotations:

Amendments (Textual) F157 Words in s. 72 heading repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F158 Words in S. 72(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F159 S. 72(1)(a)-(c) substituted (31.10.2003) for s. 72(1)(a)(b) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 21(1)(a) (with regs. 31-40) F160 S. 72(1A)(1B) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(1)(b) (with regs. 31-40) F161 S. 72(1B)(a) omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988

(Amendment) Regulations 2010 (S.I. 2010/2694), art. 4(1) F162 Words in S. 72(2)(b)(i) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F163 Words in S. 72(3)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F164 Words in S. 72(4) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

73 Reception and re-transmission of [F165wireless broadcast by cable].

(1) This section applies where a [F167wireless] broadcast made from a place in the United Kingdom is, b [F168received and immediately re-transmitted by cable] .

(2) The copyright in the broadcast is not infringed— (a) if the [F169re-transmission by cable] is in pursuance of a relevant requirement,

or (b) if and to the extent that the broadcast is made for reception in the area in which

the [F170it is re-transmitted by cable] and forms part of a qualifying service.

(3) The copyright in any work included in the broadcast is not infringed if and to the extent that the broadcast is made for reception in the area in which the [F170it is re-transmitted by cable]; but where the making of the broadcast was an infringement of the copyright in the work, the fact that the broadcast was re-transmitted [F171by cable] shall be taken into account in assessing the damages for that infringement.

(4) Where— (a) the [F172re-transmission by cable] is in pursuance of a relevant requirement, but (b) to any extent, the area in which the [F173re-transmission by cable takes place]

(“the cable area”) falls outside the area for reception in which the broadcast is made (“the broadcast area”),

the [F174re-transmission by cable] (to the extent that it is provided for so much of the cable area as falls outside the broadcast area) of any work included in the broadcast

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shall, subject to subsection (5), be treated as licensed by the owner of the copyright in the work, subject only to the payment to him by the person making the broadcast of such reasonable royalty or other payment in respect of the [F175re-transmission by cable of the broadcast] as may be agreed or determined in default of agreement by the Copyright Tribunal.

(5) Subsection (4) does not apply if, or to the extent that, the [F176re-transmission of the work by cable] is (apart from that subsection) licensed by the owner of the copyright in the work.

(6) In this section “qualifying service” means, subject to subsection (8), any of the following services—

(a) a regional or national Channel 3 service, (b) Channel 4, Channel 5 and S4C,

[F177(c) the public teletext service, (d) S4C Digital, and] (e) the television broadcasting services and teletext service of the British

Broadcasting Corporation; [F178and expressions used in this subsection have the same meanings as in Part 3 of the Communications Act 2003.]

[F179(7) In this section “relevant requirement” means a requirement imposed by a general condition (within the meaning of Chapter 1 of Part 2 of the Communications Act 2003) the setting of which is authorised under section 64 of that Act (must-carry obligations).]

(8) The Secretary of State may by order amend subsection (6) so as to add any service to, or remove any service from, the definition of “qualifying service”.

(9) The Secretary of State may also by order— (a) provide that in specified cases subsection (3) is to apply in relation to

broadcasts of a specified description which are not made as mentioned in that subsection, or

(b) exclude the application of that subsection in relation to broadcasts of a specified description made as mentioned in that subsection.

(10) Where the Secretary of State exercises the power conferred by subsection (9)(b) in relation to broadcasts of any description, the order may also provide for subsection (4) to apply, subject to such modifications as may be specified in the order, in relation to broadcasts of that description.

(11) An order under this section may contain such transitional provision as appears to the Secretary of State to be appropriate.

(12) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

[F180(13) In this section references to re-transmission by cable include the transmission of microwave energy between terrestrial fixed points.]]

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Annotations:

Amendments (Textual) F165 Words in s. 73 heading substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 22(1)(a) (with regs. 31-40) F166 Ss. 73, 73A substituted for s. 73 (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 1 (with s. 43(6)); S.I.

1996/2120, art. 4, Sch. 1 F167 Words in s. 73(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 22(1)(b) (with regs. 31-40) F168 Words in s. 73(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 22(1)(b) (with regs. 32, 33) F169 Words in s. 73(2)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 22(1)(c) (with regs. 31-40) F170 Words in s. 73(2)(b)(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 22(1)(d) (with regs. 31-40) F171 Words in s. 73(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 22(1)(e) (with regs. 31-40) F172 Words in s. 73(4)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 22(1)(f)(i) (with regs. 31-40) F173 Words in s. 73(4)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 22(1)(f)(ii) (with regs. 31-40) F174 Words in s. 73(4) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 22(1)(f)(iii) (with regs. 31-40) F175 Words in s. 73(4) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 22(1)(f)(iv) (with regs. 31-40) F176 Words in s. 73(5) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 22(1)(g) (with regs. 31-40) F177 S. 73(6)(c)(d) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch. 17

para. 92(2)(a) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F178 Words in s. 73(6) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch. 17

para. 92(2)(b) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F179 S. 73(7) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch. 17 para.

92(3) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F180 S. 73(13) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 22(1)(h) (with regs. 31-40)

F18173A Royalty or other sum payable in pursuance of section 73(4).

(1) An application to settle the royalty or other sum payable in pursuance of subsection (4) of section 73 (reception and re-transmission of [F182wireless broadcast by cable]) may be made to the Copyright Tribunal by the copyright owner or the person making the broadcast.

(2) The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.

(3) Either party may subsequently apply to the Tribunal to vary the order, and the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances.

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(4) An application under subsection (3) shall not, except with the special leave of the Tribunal, be made within twelve months from the date of the original order or of the order on a previous application under that subsection.

(5) An order under subsection (3) has effect from the date on which it is made or such later date as may be specified by the Tribunal.

Annotations:

Amendments (Textual) F181 Ss. 73, 73A substituted for s. 73 (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 1 (with s. 43(6)); S.I.

1996/2120, art. 4, Sch. 1 F182 Words in s. 73A(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 22(2) (with regs. 31-40)

74 Provision of sub-titled copies of broadcast F183. . . .

(1) A designated body may, for the purpose of providing people who are deaf or hard of hearing, or physically or mentally handicapped in other ways, with copies which are sub-titled or otherwise modified for their special needs, make copies of F184. . . broadcasts . . . and issue [F185 or lend] copies to the public, without infringing any copyright in the broadcasts . . . or works included in them.

(2) A “designated body” means a body designated for the purposes of this section by order of the Secretary of State, who shall not designate a body unless he is satisfied that it is not established or conducted for profit.

(3) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) This section does not apply if, or to the extent that, there is a licensing scheme certified for the purposes of this section under section 143 providing for the grant of licences.

Annotations:

Amendments (Textual) F183 Words in s. 74 heading repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F184 Words in s. 74(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F185 Words in s. 74(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 23(1) (with regs. 31-40)

75 Recording for archival purposes.

(1) A recording of a broadcast F186. . . of a designated class, or a copy of such a recording, may be made for the purpose of being placed in an archive maintained by a designated body without thereby infringing any copyright in the broadcast . . . or in any work included in it.

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(2) In subsection (1) “designated” means designated for the purposes of this section by order of the Secretary of State, who shall not designate a body unless he is satisfied that it is not established or conducted for profit.

(3) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Annotations:

Amendments (Textual) F186 Words in s. 75(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

Adaptations

76 Adaptations.

An act which by virtue of this Chapter may be done without infringing copyright in a literary, dramatic or musical work does not, where that work is an adaptation, infringe any copyright in the work from which the adaptation was made.

CHAPTER IV

MORAL RIGHTS

Right to be identified as author or director

77 Right to be identified as author or director.

(1) The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right to be identified as the author or director of the work in the circumstances mentioned in this section; but the right is not infringed unless it has been asserted in accordance with section 78.

(2) The author of a literary work (other than words intended to be sung or spoken with music) or a dramatic work has the right to be identified whenever—

(a) the work is published commercially, performed in public [F187or communicated to the public]; or

(b) copies of a film or sound recording including the work are issued to the public; and that right includes the right to be identified whenever any of those events occur in relation to an adaptation of the work as the author of the work from which the adaptation was made.

(3) The author of a musical work, or a literary work consisting of words intended to be sung or spoken with music, has the right to be identified whenever—

(a) the work is published commercially; (b) copies of a sound recording of the work are issued to the public; or (c) a film of which the sound-track includes the work is shown in public or copies

of such a film are issued to the public;

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and that right includes the right to be identified whenever any of those events occur in relation to an adaptation of the work as the author of the work from which the adaptation was made.

(4) The author of an artistic work has the right to be identified whenever— (a) the work is published commercially or exhibited in public, or a visual image

of it is [F188communicated to the public]; (b) a film including a visual image of the work is shown in public or copies of

such a film are issued to the public; or (c) in the case of a work of architecture in the form of a building or a model for

a building, a sculpture or a work of artistic craftsmanship, copies of a graphic work representing it, or of a photograph of it, are issued to the public.

(5) The author of a work of architecture in the form of a building also has the right to be identified on the building as constructed or, where more than one building is constructed to the design, on the first to be constructed.

(6) The director of a film has the right to be identified whenever the film is shown in public [F187or communicated to the public] or copies of the film are issued to the public.

(7) The right of the author or director under this section is— (a) in the case of commercial publication or the issue to the public of copies of a

film or sound recording, to be identified in or on each copy or, if that is not appropriate, in some other manner likely to bring his identity to the notice of a person acquiring a copy,

(b) in the case of identification on a building, to be identified by appropriate means visible to persons entering or approaching the building, and

(c) in any other case, to be identified in a manner likely to bring his identity to the attention of a person seeing or hearing the performance, exhibition, showing [F189or communication to the public] in question;

and the identification must in each case be clear and reasonably prominent.

(8) If the author or director in asserting his right to be identified specifies a pseudonym, initials or some other particular form of identification, that form shall be used; otherwise any reasonable form of identification may be used.

(9) This section has effect subject to section 79 (exceptions to right).

Annotations:

Amendments (Textual) F187 Words in s. 77(2)(a)(6) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(1)(a)(b) (with regs. 31-40) F188 Words in s. 77(4)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(2)(a) (with regs. 31-40) F189 Words in s. 77(7)(c) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 9(1)(b) (with regs. 31-40)

78 Requirement that right be asserted.

(1) A person does not infringe the right conferred by section 77 (right to be identified as author or director) by doing any of the acts mentioned in that section unless the right

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has been asserted in accordance with the following provisions so as to bind him in relation to that act.

(2) The right may be asserted generally, or in relation to any specified act or description of acts—

(a) on an assignment of copyright in the work, by including in the instrument effecting the assignment a statement that the author or director asserts in relation to that work his right to be identified, or

(b) by instrument in writing signed by the author or director.

(3) The right may also be asserted in relation to the public exhibition of an artistic work— (a) by securing that when the author or other first owner of copyright parts with

possession of the original, or of a copy made by him or under his direction or control, the author is identified on the original or copy, or on a frame, mount or other thing to which it is attached, or

(b) by including in a licence by which the author or other first owner of copyright authorises the making of copies of the work a statement signed by or on behalf of the person granting the licence that the author asserts his right to be identified in the event of the public exhibition of a copy made in pursuance of the licence.

(4) The persons bound by an assertion of the right under subsection (2) or (3) are— (a) in the case of an assertion under subsection (2)(a), the assignee and anyone

claiming through him, whether or not he has notice of the assertion; (b) in the case of an assertion under subsection (2)(b), anyone to whose notice

the assertion is brought; (c) in the case of an assertion under subsection (3)(a), anyone into whose hands

that original or copy comes, whether or not the identification is still present or visible;

(d) in the case of an assertion under subsection (3)(b), the licensee and anyone into whose hands a copy made in pursuance of the licence comes, whether or not he has notice of the assertion.

(5) In an action for infringement of the right the court shall, in considering remedies, take into account any delay in asserting the right.

79 Exceptions to right.

(1) The right conferred by section 77 (right to be identified as author or director) is subject to the following exceptions.

(2) The right does not apply in relation to the following descriptions of work— (a) a computer program; (b) the design of a typeface; (c) any computer-generated work.

(3) The right does not apply to anything done by or with the authority of the copyright owner where copyright in the work originally [F190 vested in the author’s or director’s employer by virtue of section 11(2) (works produced in the course of employment).]

(4) The right is not infringed by an act which by virtue of any of the following provisions would not infringe copyright in the work—

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(a) section 30 (fair dealing for certain purposes), so far as it relates to the reporting of current events by means of a sound recording, film [F191or broadcast];

(b) section 31 (incidental inclusion of work in an artistic work, sound recording, film [F191or broadcast]);

(c) section 32(3) (examination questions); (d) section 45 (parliamentary and judicial proceedings); (e) section 46(1) or (2) (Royal Commissions and statutory inquiries); (f) section 51 (use of design documents and models); (g) section 52 (effect of exploitation of design derived from artistic work); (h) [F192section 57 or 66A (acts permitted on assumptions as to expiry of

(5) The right does not apply in relation to any work made for the purpose of reporting current events.

(6) The right does not apply in relation to the publication in— (a) a newspaper, magazine or similar periodical, or (b) an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.

(7) The right does not apply in relation to— (a) a work in which Crown copyright or Parliamentary copyright subsists, or (b) a work in which copyright originally vested in an international organisation

by virtue of section 168, unless the author or director has previously been identified as such in or on published copies of the work.

Annotations:

Amendments (Textual) F190 Words in s. 79(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 18(1) (with regs. 31-40) F191 Words in s. 79(4)(a)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(g)(h) (with regs. 31-40) F192 Words in s. 79(4) substituted (1.1.1996) by S.I. 1995/3297, reg. 5(3) (with Pt. III)

Right to object to derogatory treatment of work

80 Right to object to derogatory treatment of work.

(1) The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right in the circumstances mentioned in this section not to have his work subjected to derogatory treatment.

(2) For the purposes of this section— (a) “treatment” of a work means any addition to, deletion from or alteration to or

adaptation of the work, other than— (i) a translation of a literary or dramatic work, or

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(ii) an arrangement or transcription of a musical work involving no more than a change of key or register; and

(b) the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director;

and in the following provisions of this section references to a derogatory treatment of a work shall be construed accordingly.

(3) In the case of a literary, dramatic or musical work the right is infringed by a person who—

(a) publishes commercially, performs in public [F193or communicates to the public] a derogatory treatment of the work; or

(b) issues to the public copies of a film or sound recording of, or including, a derogatory treatment of the work.

(4) In the case of an artistic work the right is infringed by a person who— (a) publishes commercially or exhibits in public a derogatory treatment of the

work, [F194or communicates to the public] a visual image of a derogatory treatment of the work,

(b) shows in public a film including a visual image of a derogatory treatment of the work or issues to the public copies of such a film, or

(ii) a sculpture, or (iii) a work of artistic craftsmanship,

issues to the public copies of a graphic work representing, or of a photograph of, a derogatory treatment of the work.

(5) Subsection (4) does not apply to a work of architecture in the form of a building; but where the author of such a work is identified on the building and it is the subject of derogatory treatment he has the right to require the identification to be removed.

(6) In the case of a film, the right is infringed by a person who— (a) shows in public [F193or communicates to the public] a derogatory treatment

of the film; or (b) issues to the public copies of a derogatory treatment of the film,

F195. . .

(7) The right conferred by this section extends to the treatment of parts of a work resulting from a previous treatment by a person other than the author or director, if those parts are attributed to, or are likely to be regarded as the work of, the author or director.

(8) This section has effect subject to sections 81 and 82 (exceptions to and qualifications of right).

Annotations:

Amendments (Textual) F193 Words in s. 80(3)(a)(6)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 10(1) (with regs. 31-40) F194 Words in s. 80(4)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 13(2) (with regs. 31-40)

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F195 Words in s. 80(6) omitted (1.1.1996) by virtue of S.I. 1995/3297, reg. 9(2) (with Pt. III)

81 Exceptions to right.

(1) The right conferred by section 80 (right to object to derogatory treatment of work) is subject to the following exceptions.

(2) The right does not apply to a computer program or to any computer-generated work.

(3) The right does not apply in relation to any work made for the purpose of reporting current events.

(4) The right does not apply in relation to the publication in— (a) a newspaper, magazine or similar periodical, or (b) an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.

Nor does the right apply in relation to any subsequent exploitation elsewhere of such a work without any modification of the published version.

(5) The right is not infringed by an act which by virtue of [F196section 57 or 66A (acts permitted on assumptions as to expiry of copyright, &c.)] would not infringe copyright.

(6) The right is not infringed by anything done for the purpose of— (a) avoiding the commission of an offence, (b) complying with a duty imposed by or under an enactment, or (c) in the case of the British Broadcasting Corporation, avoiding the inclusion

in a programme broadcast by them of anything which offends against good taste or decency or which is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling,

provided, where the author or director is identified at the time of the relevant act or has previously been identified in or on published copies of the work, that there is a sufficient disclaimer.

Annotations:

Amendments (Textual) F196 Words in s. 81(5) substituted (1.1.1996) by S.I. 1995/3297, reg. 5(3) (with Pt. III)

82 Qualification of right in certain cases.

(1) This section applies to— (a) works in which copyright originally vested in the author’s [F197 or

director's] employer by virtue of section 11(2) (works produced in course of employment) F198. . .

(b) works in which Crown copyright or Parliamentary copyright subsists, and (c) works in which copyright originally vested in an international organisation by

virtue of section 168.

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(2) The right conferred by section 80 (right to object to derogatory treatment of work) does not apply to anything done in relation to such a work by or with the authority of the copyright owner unless the author or director—

(a) is identified at the time of the relevant act, or (b) has previously been identified in or on published copies of the work;

and where in such a case the right does apply, it is not infringed if there is a sufficient disclaimer.

Annotations:

Amendments (Textual) F197 Words in s. 82(1)(a) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 18(2) (with regs. 31-40) F198 Words in s. 82(1)(a) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2, Sch. 1 para. 18(2), Sch. 2 (with regs. 31-40)

83 Infringement of right by possessing or dealing with infringing article.

(1) The right conferred by section 80 (right to object to derogatory treatment of work) is also infringed by a person who—

(a) possesses in the course of a business, or (b) sells or lets for hire, or offers or exposes for sale or hire, or (c) in the course of a business exhibits in public or distributes, or (d) distributes otherwise than in the course of a business so as to affect

prejudicially the honour or reputation of the author or director, an article which is, and which he knows or has reason to believe is, an infringing article.

(2) An “infringing article” means a work or a copy of a work which— (a) has been subjected to derogatory treatment within the meaning of section 80,

and (b) has been or is likely to be the subject of any of the acts mentioned in that

section in circumstances infringing that right.

False attribution of work

84 False attribution of work.

(1) A person has the right in the circumstances mentioned in this section— (a) not to have a literary, dramatic, musical or artistic work falsely attributed to

him as author, and (b) not to have a film falsely attributed to him as director;

and in this section an “attribution”, in relation to such a work, means a statement (express or implied) as to who is the author or director.

(2) The right is infringed by a person who— (a) issues to the public copies of a work of any of those descriptions in or on

which there is a false attribution, or

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(b) exhibits in public an artistic work, or a copy of an artistic work, in or on which there is a false attribution.

(3) The right is also infringed by a person who— (a) in the case of a literary, dramatic or musical work, performs the work in public

[F199or communicates it to the public] as being the work of a person, or (b) in the case of a film, shows it in public [F199or communicates it to the public]

as being directed by a person, knowing or having reason to believe that the attribution is false.

(4) The right is also infringed by the issue to the public or public display of material containing a false attribution in connection with any of the acts mentioned in subsection (2) or (3).

(5) The right is also infringed by a person who in the course of a business— (a) possesses or deals with a copy of a work of any of the descriptions mentioned

in subsection (1) in or on which there is a false attribution, or (b) in the case of an artistic work, possesses or deals with the work itself when

there is a false attribution in or on it, knowing or having reason to believe that there is such an attribution and that it is false.

(6) In the case of an artistic work the right is also infringed by a person who in the course of a business—

(a) deals with a work which has been altered after the author parted with possession of it as being the unaltered work of the author, or

(b) deals with a copy of such a work as being a copy of the unaltered work of the author,

knowing or having reason to believe that that is not the case.

(7) References in this section to dealing are to selling or letting for hire, offering or exposing for sale or hire, exhibiting in public, or distributing.

(8) This section applies where, contrary to the fact— (a) a literary, dramatic or musical work is falsely represented as being an

adaptation of the work of a person, or (b) a copy of an artistic work is falsely represented as being a copy made by the

author of the artistic work, as it applies where the work is falsely attributed to a person as author.

Annotations:

Amendments (Textual) F199 Words in s. 84(3)(a)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 10(2) (with regs. 31-40)

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Right to privacy of certain photographs and films

85 Right to privacy of certain photographs and films.

(1) A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have—

(a) copies of the work issued to the public, (b) the work exhibited or shown in public, or (c) the work [F200communicated to the public];

and, except as mentioned in subsection (2), a person who does or authorises the doing of any of those acts infringes that right.

(2) The right is not infringed by an act which by virtue of any of the following provisions would not infringe copyright in the work—

(a) section 31 (incidental inclusion of work in an artistic work, film [F201or broadcast]);

(b) section 45 (parliamentary and judicial proceedings); (c) section 46 (Royal Commissions and statutory inquiries); (d) section 50 (acts done under statutory authority); (e) [F202section 57 or 66A (acts permitted on assumptions as to expiry of

Annotations:

Amendments (Textual) F200 Words in s. 85(1)(c) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(2)(b) (with regs. 31-40) F201 Words in s. 85(2)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(i) (with regs. 31-40) F202 Words in s. 85(2) substituted (1.1.1996) by S.I. 1995/3297, reg. 6(3) (with Pt. III)

Supplementary

86 Duration of rights.

(1) The rights conferred by section 77 (right to be identified as author or director), section 80 (right to object to derogatory treatment of work) and section 85 (right to privacy of certain photographs and films) continue to subsist so long as copyright subsists in the work.

(2) The right conferred by section 84 (false attribution) continues to subsist until 20 years after a person’s death.

87 Consent and waiver of rights.

(1) It is not an infringement of any of the rights conferred by this Chapter to do any act to which the person entitled to the right has consented.

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(2) Any of those rights may be waived by instrument in writing signed by the person giving up the right.

(3) A waiver— (a) may relate to a specific work, to works of a specified description or to works

generally, and may relate to existing or future works, and (b) may be conditional or unconditional and may be expressed to be subject to

revocation; and if made in favour of the owner or prospective owner of the copyright in the work or works to which it relates, it shall be presumed to extend to his licensees and successors in title unless a contrary intention is expressed.

(4) Nothing in this Chapter shall be construed as excluding the operation of the general law of contract or estoppel in relation to an informal waiver or other transaction in relation to any of the rights mentioned in subsection (1).

88 Application of provisions to joint works.

(1) The right conferred by section 77 (right to be identified as author or director) is, in the case of a work of joint authorship, a right of each joint author to be identified as a joint author and must be asserted in accordance with section 78 by each joint author in relation to himself.

(2) The right conferred by section 80 (right to object to derogatory treatment of work) is, in the case of a work of joint authorship, a right of each joint author and his right is satisfied if he consents to the treatment in question.

(3) A waiver under section 87 of those rights by one joint author does not affect the rights of the other joint authors.

(4) The right conferred by section 84 (false attribution) is infringed, in the circumstances mentioned in that section—

(a) by any false statement as to the authorship of a work of joint authorship, and (b) by the false attribution of joint authorship in relation to a work of sole

authorship; and such a false attribution infringes the right of every person to whom authorship of any description is, whether rightly or wrongly, attributed.

(5) The above provisions also apply (with any necessary adaptations) in relation to a film which was, or is alleged to have been, jointly directed, as they apply to a work which is, or is alleged to be, a work of joint authorship.

A film is “jointly directed” if it is made by the collaboration of two or more directors and the contribution of each director is not distinct from that of the other director or directors.

(6) The right conferred by section 85 (right to privacy of certain photographs and films) is, in the case of a work made in pursuance of a joint commission, a right of each person who commissioned the making of the work, so that—

(a) the right of each is satisfied if he consents to the act in question, and (b) a waiver under section 87 by one of them does not affect the rights of the

others.

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89 Application of provisions to parts of works.

(1) The rights conferred by section 77 (right to be identified as author or director) and section 85 (right to privacy of certain photographs and films) apply in relation to the whole or any substantial part of a work.

(2) The rights conferred by section 80 (right to object to derogatory treatment of work) and section 84 (false attribution) apply in relation to the whole or any part of a work.

CHAPTER V

DEALINGS WITH RIGHTS IN COPYRIGHT WORKS

Annotations:

Modifications etc. (not altering text) C32 Pt. I Ch. V (ss. 90-95) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1)-(3) (with

Pt. III)

Copyright

90 Assignment and licences.

(1) Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.

(2) An assignment or other transmission of copyright may be partial, that is, limited so as to apply—

(a) to one or more, but not all, of the things the copyright owner has the exclusive right to do;

(b) to part, but not the whole, of the period for which the copyright is to subsist.

(3) An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor.

(4) A licence granted by a copyright owner is binding on every successor in title to his interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Part to doing anything with, or without, the licence of the copyright owner shall be construed accordingly.

Annotations:

Modifications etc. (not altering text) C33 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

91 Prospective ownership of copyright.

(1) Where by an agreement made in relation to future copyright, and signed by or on behalf of the prospective owner of the copyright, the prospective owner purports to assign the future copyright (wholly or partially) to another person, then if, on the copyright

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coming into existence, the assignee or another person claiming under him would be entitled as against all other persons to require the copyright to be vested in him, the copyright shall vest in the assignee or his successor in title by virtue of this subsection.

(2) In this Part— “future copyright” means copyright which will or may come into existence

in respect of a future work or class of works or on the occurrence of a future event; and

“prospective owner” shall be construed accordingly, and includes a person who is prospectively entitled to copyright by virtue of such an agreement as is mentioned in subsection (1).

(3) A licence granted by a prospective owner of copyright is binding on every successor in title to his interest (or prospective interest) in the right, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Part to doing anything with, or without, the licence of the copyright owner shall be construed accordingly.

Annotations:

Modifications etc. (not altering text) C34 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

92 Exclusive licences.

(1) In this Part an “exclusive licence” means a licence in writing signed by or on behalf of the copyright owner authorising the licensee to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the copyright owner.

(2) The licensee under an exclusive licence has the same rights against a successor in title who is bound by the licence as he has against the person granting the licence.

Annotations:

Modifications etc. (not altering text) C35 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

93 Copyright to pass under will with unpublished work.

Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to—

(a) an original document or other material thing recording or embodying a literary, dramatic, musical or artistic work which was not published before the death of the testator, or

(b) an original material thing containing a sound recording or film which was not published before the death of the testator,

the bequest shall, unless a contrary intention is indicated in the testator’s will or a codicil to it, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.

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Annotations:

Modifications etc. (not altering text) C36 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

[F20393A Presumption of transfer of rental right in case of film production agreement.

(1) Where an agreement concerning film production is concluded between an author and a film producer, the author shall be presumed, unless the agreement provides to the contrary, to have transferred to the film producer any rental right in relation to the film arising by virtue of the inclusion of a copy of the author’s work in the film.

(2) In this section “author” means an author, or prospective author, of a literary, dramatic, musical or artistic work.

(3) Subsection (1) does not apply to any rental right in relation to the film arising by virtue of the inclusion in the film of the screenplay, the dialogue or music specifically created for and used in the film.

(4) Where this section applies, the absence of signature by or on behalf of the author does not exclude the operation of section 91(1) (effect of purported assignment of future copyright).

(5) The reference in subsection (1) to an agreement concluded between an author and a film producer includes any agreement having effect between those persons, whether made by them directly or through intermediaries.

(6) Section 93B (right to equitable remuneration on transfer of rental right) applies where there is a presumed transfer by virtue of this section as in the case of an actual transfer.]

Annotations:

Amendments (Textual) F203 S. 93A inserted (1.12.1996) by S.I. 1996/2967, reg. 12 (with Pt. III)

Modifications etc. (not altering text) C37 S. 93A applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 32(1) (with Pt. III)

[F204Right to equitable remuneration where rental right transferred

Annotations:

Amendments (Textual) F204 S. 93B and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 14(1) (with Pt. III)

F20593B Right to equitable remuneration where rental right transferred.

(1) Where an author to whom this section applies has transferred his rental right concerning a sound recording or a film to the producer of the sound recording or film, he retains the right to equitable remuneration for the rental.

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The authors to whom this section applies are— (a) the author of a literary, dramatic, musical or artistic work, and (b) the principal director of a film.

(2) The right to equitable remuneration under this section may not be assigned by the author except to a collecting society for the purpose of enabling it to enforce the right on his behalf.

The right is, however, transmissible by testamentary disposition or by operation of law as personal or moveable property; and it may be assigned or further transmitted by any person into whose hands it passes.

(3) Equitable remuneration under this section is payable by the person for the time being entitled to the rental right, that is, the person to whom the right was transferred or any successor in title of his.

(4) The amount payable by way of equitable remuneration is as agreed by or on behalf of the persons by and to whom it is payable, subject to section 93C (reference of amount to Copyright Tribunal).

(5) An agreement is of no effect in so far as it purports to exclude or restrict the right to equitable remuneration under this section.

(6) References in this section to the transfer of rental right by one person to another include any arrangement having that effect, whether made by them directly or through intermediaries.

(7) In this section a “collecting society” means a society or other organisation which has as its main object, or one of its main objects, the exercise of the right to equitable remuneration under this section on behalf of more than one author.

Annotations:

Amendments (Textual) F205 S. 93B inserted (1.12.1996) by S.I. 1996/2967, reg. 14(1) (with Pt. III)

Modifications etc. (not altering text) C38 S. 93B applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 32(2) (with Pt. III) C39 S. 93B restricted (1.12.1996) by S.I. 1996/2967, reg. 33 (with Pt. III)

F20693C Equitable remuneration: reference of amount to Copyright Tribunal.

(1) In default of agreement as to the amount payable by way of equitable remuneration under section 93B, the person by or to whom it is payable may apply to the Copyright Tribunal to determine the amount payable.

(2) A person to or by whom equitable remuneration is payable under that section may also apply to the Copyright Tribunal—

(a) to vary any agreement as to the amount payable, or (b) to vary any previous determination of the Tribunal as to that matter; but except

with the special leave of the Tribunal no such application may be made within twelve months from the date of a previous determination.

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An order made on an application under this subsection has effect from the date on which it is made or such later date as may be specified by the Tribunal.

(3) On an application under this section the Tribunal shall consider the matter and make such order as to the method of calculating and paying equitable remuneration as it may determine to be reasonable in the circumstances, taking into account the importance of the contribution of the author to the film or sound recording.

(4) Remuneration shall not be considered inequitable merely because it was paid by way of a single payment or at the time of the transfer of the rental right.

(5) An agreement is of no effect in so far as it purports to prevent a person questioning the amount of equitable remuneration or to restrict the powers of the Copyright Tribunal under this section.]

Annotations:

Amendments (Textual) F206 S. 93C inserted (1.12.1996) by S.I. 1996/2967, reg. 14(1) (with Pt. III)

Moral rights

94 Moral rights not assignable.

The rights conferred by Chapter IV (moral rights) are not assignable.

95 Transmission of moral rights on death.

(1) On the death of a person entitled to the right conferred by section 77 (right to identification of author or director), section 80 (right to object to derogatory treatment of work) or section 85 (right to privacy of certain photographs and films)—

(a) the right passes to such person as he may by testamentary disposition specifically direct,

(b) if there is no such direction but the copyright in the work in question forms part of his estate, the right passes to the person to whom the copyright passes, and

(c) if or to the extent that the right does not pass under paragraph (a) or (b) it is exercisable by his personal representatives.

(2) Where copyright forming part of a person’s estate passes in part to one person and in part to another, as for example where a bequest is limited so as to apply—

(a) to one or more, but not all, of the things the copyright owner has the exclusive right to do or authorise, or

(b) to part, but not the whole, of the period for which the copyright is to subsist, any right which passes with the copyright by virtue of subsection (1) is correspondingly divided.

(3) Where by virtue of subsection (1)(a) or (b) a right becomes exercisable by more than one person—

(a) it may, in the case of the right conferred by section 77 (right to identification of author or director), be asserted by any of them;

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(b) it is, in the case of the right conferred by section 80 (right to object to derogatory treatment of work) or section 85 (right to privacy of certain photographs and films), a right exercisable by each of them and is satisfied in relation to any of them if he consents to the treatment or act in question; and

(4) A consent or waiver previously given or made binds any person to whom a right passes by virtue of subsection (1).

(5) Any infringement after a person’s death of the right conferred by section 84 (false attribution) is actionable by his personal representatives.

(6) Any damages recovered by personal representatives by virtue of this section in respect of an infringement after a person’s death shall devolve as part of his estate as if the right of action had subsisted and been vested in him immediately before his death.

CHAPTER VI

REMEDIES FOR INFRINGEMENT

Annotations:

Modifications etc. (not altering text) C40 Pt. I Ch. VI (ss. 96-115) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17 (with Pt.

III)

Rights and remedies of copyright owner

96 Infringement actionable by copyright owner.

(1) An infringement of copyright is actionable by the copyright owner.

(2) In an action for infringement of copyright all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.

(3) This section has effect subject to the following provisions of this Chapter.

Annotations:

Modifications etc. (not altering text) C41 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

97 Provisions as to damages in infringement action.

(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

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(2) The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—

(a) the flagrancy of the infringement, and (b) any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.

Annotations:

Modifications etc. (not altering text) C42 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

[F20797A Injunctions against service providers

(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.

(2) In determining whether a service provider has actual knowledge for the purpose of this section, a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, amongst other things, shall have regard to—

(a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013); and

(b) the extent to which any notice includes— (i) the full name and address of the sender of the notice;

(ii) details of the infringement in question.

(3) In this section “service provider” has the meaning given to it by regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002.]

Annotations:

Amendments (Textual) F207 S. 97A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498),

reg. 27(1) (with regs. 31-40)

98 Undertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of copyright in respect of which a licence is available as of right under section 144 (powers exercisable in consequence of report of [F208Competition Commission]) the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the Copyright Tribunal under that section—

(a) no injunction shall be granted against him, (b) no order for delivery up shall be made under section 99, and (c) the amount recoverable against him by way of damages or on an account of

profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

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(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.

(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.

Annotations:

Amendments (Textual) F208 Words in s. 98(1) substituted (1.4.1999) by S.I. 1999/506, art. 23

Modifications etc. (not altering text) C43 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

99 Order for delivery up.

(1) Where a person— (a) has an infringing copy of a work in his possession, custody or control in the

course of a business, or (b) has in his possession, custody or control an article specifically designed or

adapted for making copies of a particular copyright work, knowing or having reason to believe that it has been or is to be used to make infringing copies,

the owner of the copyright in the work may apply to the court for an order that the infringing copy or article be delivered up to him or to such other person as the court may direct.

(2) An application shall not be made after the end of the period specified in section 113 (period after which remedy of delivery up not available); and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section 114 (order as to disposal of infringing copy or other article).

(3) A person to whom an infringing copy or other article is delivered up in pursuance of an order under this section shall, if an order under section 114 is not made, retain it pending the making of an order, or the decision not to make an order, under that section.

(4) Nothing in this section affects any other power of the court.

Annotations:

Modifications etc. (not altering text) C44 S. 99 extended by S.I. 1991/724, art. 2(1)(n)

100 Right to seize infringing copies and other articles.

(1) An infringing copy of a work which is found exposed or otherwise immediately available for sale or hire, and in respect of which the copyright owner would be entitled to apply for an order under section 99, may be seized and detained by him or a person authorised by him.

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The right to seize and detain is exercisable subject to the following conditions and is subject to any decision of the court under section 114.

(2) Before anything is seized under this section notice of the time and place of the proposed seizure must be given to a local police station.

(3) A person may for the purpose of exercising the right conferred by this section enter premises to which the public have access but may not seize anything in the possession, custody or control of a person at a permanent or regular place of business of his, and may not use any force.

(4) At the time when anything is seized under this section there shall be left at the place where it was seized a notice in the prescribed form containing the prescribed particulars as to the person by whom or on whose authority the seizure is made and the grounds on which it is made.

(5) In this section—

“premises” includes land, buildings, moveable structures, vehicles, vessels, aircraft and hovercraft; and “prescribed” means prescribed by order of the Secretary of State.

(6) An order of the Secretary of State under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Rights and remedies of exclusive licensee

101 Rights and remedies of exclusive licensee.

(1) An exclusive licensee has, except against the copyright owner, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.

(2) His rights and remedies are concurrent with those of the copyright owner; and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly.

(3) In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the copyright owner.

Annotations:

Modifications etc. (not altering text) C45 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

[F209101ACertain infringements actionable by a non-exclusive licensee

(1) A non-exclusive licensee may bring an action for infringement of copyright if— (a) the infringing act was directly connected to a prior licensed act of the licensee;

and (b) the licence—

(i) is in writing and is signed by or on behalf of the copyright owner; and

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(ii) expressly grants the non-exclusive licensee a right of action under this section.

(2) In an action brought under this section, the non-exclusive licensee shall have the same rights and remedies available to him as the copyright owner would have had if he had brought the action.

(3) The rights granted under this section are concurrent with those of the copyright owner and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly.

(4) In an action brought by a non-exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the copyright owner.

(5) Subsections (1) to (4) of section 102 shall apply to a non-exclusive licensee who has a right of action by virtue of this section as it applies to an exclusive licensee.

(6) In this section a “non-exclusive licensee” means the holder of a licence authorising the licensee to exercise a right which remains exercisable by the copyright owner.]

Annotations:

Amendments (Textual) F209 S. 101A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 28 (with regs. 31-40)

102 Exercise of concurrent rights.

(1) Where an action for infringement of copyright brought by the copyright owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the copyright owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as a plaintiff or added as a defendant.

(2) A copyright owner or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings.

(3) The above provisions do not affect the granting of interlocutory relief on an application by a copyright owner or exclusive licensee alone.

(4) Where an action for infringement of copyright is brought which relates (wholly or partly) to an infringement in respect of which the copyright owner and an exclusive licensee have or had concurrent rights of action—

(a) the court shall in assessing damages take into account— (i) the terms of the licence, and

(ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement;

(b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and

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(c) the court shall if an account of profits is directed apportion the profits between them as the court considers just, subject to any agreement between them;

and these provisions apply whether or not the copyright owner and the exclusive licensee are both parties to the action.

(5) The copyright owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 99 (order for delivery up) or exercising the right conferred by section 100 (right of seizure); and the court may on the application of the licensee make such order under section 99 or, as the case may be, prohibiting or permitting the exercise by the copyright owner of the right conferred by section 100, as it thinks fit having regard to the terms of the licence.

Annotations:

Modifications etc. (not altering text) C46 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV) C47 S. 102(5) extended by S.I.1991/724, art. 2(1)(n)

Remedies for infringement of moral rights

103 Remedies for infringement of moral rights.

(1) An infringement of a right conferred by Chapter IV (moral rights) is actionable as a breach of statutory duty owed to the person entitled to the right.

(2) In proceedings for infringement of the right conferred by section 80 (right to object to derogatory treatment of work) the court may, if it thinks it is an adequate remedy in the circumstances, grant an injunction on terms prohibiting the doing of any act unless a disclaimer is made, in such terms and in such manner as may be approved by the court, dissociating the author or director from the treatment of the work.

Presumptions

104 Presumptions relevant to literary, dramatic, musical and artistic works.

(1) The following presumptions apply in proceedings brought by virtue of this Chapter with respect to a literary, dramatic, musical or artistic work.

(2) Where a name purporting to be that of the author appeared on copies of the work as published or on the work when it was made, the person whose name appeared shall be presumed, until the contrary is proved—

(a) to be the author of the work; (b) to have made it in circumstances not falling within section 11(2), 163,

165 or 168 (works produced in course of employment, Crown copyright, Parliamentary copyright or copyright of certain international organisations).

(3) In the case of a work alleged to be a work of joint authorship, subsection (2) applies in relation to each person alleged to be one of the authors.

(4) Where no name purporting to be that of the author appeared as mentioned in subsection (2) but—

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(a) the work qualifies for copyright protection by virtue of section 155 (qualification by reference to country of first publication), and

(b) a name purporting to be that of the publisher appeared on copies of the work as first published,

the person whose name appeared shall be presumed, until the contrary is proved, to have been the owner of the copyright at the time of publication.

(5) If the author of the work is dead or the identity of the author cannot be ascertained by reasonable inquiry, it shall be presumed, in the absence of evidence to the contrary—

(a) that the work is an original work, and (b) that the plaintiff’s allegations as to what was the first publication of the work

and as to the country of first publication are correct.

105 Presumptions relevant to sound recordings and films.

(1) In proceedings brought by virtue of this Chapter with respect to a sound recording, where copies of the recording as issued to the public bear a label or other mark stating —

(a) that a named person was the owner of copyright in the recording at the date of issue of the copies, or

(b) that the recording was first published in a specified year or in a specified country,

the label or mark shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(2) In proceedings brought by virtue of this Chapter with respect to a film, where copies of the film as issued to the public bear a statement—

(a) that a named person was the [F210director or producer] of the film, [F211(aa) that a named person was the principal director, the author of the screenplay,

the author of the dialogue or the composer of music specifically created for and used in the film,]

(b) that a named person was the owner of copyright in the film at the date of issue of the copies, or

(c) that the film was first published in a specified year or in a specified country, the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(3) In proceedings brought by virtue of this Chapter with respect to a computer program, where copies of the program are issued to the public in electronic form bearing a statement—

(a) that a named person was the owner of copyright in the program at the date of issue of the copies, or

(b) that the program was first published in a specified country or that copies of it were first issued to the public in electronic form in a specified year,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(4) The above presumptions apply equally in proceedings relating to an infringement alleged to have occurred before the date on which the copies were issued to the public.

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(5) In proceedings brought by virtue of this Chapter with respect to a film, where the film as shown in public [F212or communicated to the public] bears a statement—

(a) that a named person was the [F210director or producer] of the film, or [F213(aa) that a named person was the principal director of the film, the author of the

screenplay, the author of the dialogue or the composer of music specifically created for and used in the film, or,]

(b) that a named person was the owner of copyright in the film immediately after it was made,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

This presumption applies equally in proceedings relating to an infringement alleged to have occurred before the date on which the film was shown in public, broadcast or included in a cable programme service.

[F214(6) For the purposes of this section, a statement that a person was the director of a film shall be taken, unless a contrary indication appears, as meaning that he was the principal director of the film.]

Annotations:

Amendments (Textual) F210 Words in s. 105(2)(a)(5)(a) substituted (1.12.1996 with effect in relation to films made on or after

1.7.1994) by S.I. 1996/2967, regs. 18(4)(a), 36 (with Pt. III) F211 S. 105(2)(aa) inserted (1.1.1996) by S.I. 1995/3297, Pt. II reg. 5(4) (with Pt. III) F212 Words in s. 105(5) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(1)(c) (with regs. 31-40) F213 S. 105(5)(aa) inserted (1.12.1996 with effect in relation to films made on or after 1.7.1994) by S.I.

1996/2967, reg. 18(4)(b) (with Pt. III) F214 S. 105(6) added (1.12.1996 with effect in relation to films made on or after 1.7.1994) by S.I.

1996/2967, reg. 18(4)(c) (with Pt. III)

106 Presumptions relevant to works subject to Crown copyright.

In proceedings brought by virtue of this Chapter with respect to a literary, dramatic or musical work in which Crown copyright subsists, where there appears on printed copies of the work a statement of the year in which the work was first published commercially, that statement shall be admissible as evidence of the fact stated and shall be presumed to be correct in the absence of evidence to the contrary.

Offences

107 Criminal liability for making or dealing with infringing articles, &c.

(1) A person commits an offence who, without the licence of the copyright owner— (a) makes for sale or hire, or (b) imports into the United Kingdom otherwise than for his private and domestic

use, or (c) possesses in the course of a business with a view to committing any act

infringing the copyright, or

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(d) in the course of a business — (i) sells or lets for hire, or

(ii) offers or exposes for sale or hire, or (iii) exhibits in public, or (iv) distributes, or

(e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.

(2) A person commits an offence who— (a) makes an article specifically designed or adapted for making copies of a

particular copyright work, or (b) has such an article in his possession,

knowing or having reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business.

[F215(2A) A person who infringes copyright in a work by communicating the work to the public —

(a) in the course of a business, or (b) otherwise than in the course of a business to such an extent as to affect

prejudicially the owner of the copyright, commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work.]

(3) Where copyright is infringed (otherwise than by reception of a [F216communication to the public])—

(a) by the public performance of a literary, dramatic or musical work, or (b) by the playing or showing in public of a sound recording or film,

any person who caused the work to be so performed, played or shown is guilty of an offence if he knew or had reason to believe that copyright would be infringed.

(4) A person guilty of an offence under subsection (1)(a), (b), (d)(iv) or (e) is liable— (a) on summary conviction to imprisonment for a term not exceeding six months

or a fine not exceeding [F217£50,000], or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding

[F218ten] years, or both.

[F219(4A) A person guilty of an offence under subsection (2A) is liable— (a) on summary conviction to imprisonment for a term not exceeding three

months or a fine not exceeding [F217£50,000], or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding

two years, or both.]

(5) A person guilty of any other offence under this section is liable on summary conviction to imprisonment for a term not exceeding [F220three] months or a fine not exceeding level 5 on the standard scale, or both.

(6) Sections 104 to 106 (presumptions as to various matters connected with copyright) do not apply to proceedings for an offence under this section; but without prejudice to their application in proceedings for an order under section 108 below.

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Annotations:

Amendments (Textual) F215 S. 107(2A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 26(1)(a) (with regs. 31-40) F216 Words in s. 107(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 9(2) (with regs. 31-40) F217 Words in s. 107(4)(a)(4A)(a) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 42(2),

47(1) F218 Word in s. 107(4)(b) substituted (20.11.2002) by 2002 c. 25, s. 1(2)(5); S.I. 2002/2749, art. 2 F219 S. 107(4A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 26(1)(b) (with regs. 31-40) F220 Word in s. 107(5) substituted (1.1.2011) by The Copyright, Designs and Patents Act 1988

(Amendment) Regulations 2010 (S.I. 2010/2694), art. 5

[F221107AEnforcement by local weights and measures authority.

(1) It is the duty of every local weights and measures authority to enforce within their area the provisions of section 107.

(2) The following provisions of the M7Trade Descriptions Act 1968 apply in relation to the enforcement of that section by such an authority as in relation to the enforcement of that Act—

section 27 (power to make test purchases),

section 28 (power to enter premises and inspect and seize goods and documents),

section 29 (obstruction of authorised officers), and

section 33 (compensation for loss, &c. of goods seized).

(3) Subsection (1) above does not apply in relation to the enforcement of section 107 in Northern Ireland, but it is the duty of the Department of Economic Development to enforce that section in Northern Ireland.

For that purpose the provisions of the Trade Descriptions Act 1968 specified in subsection (2) apply as if for the references to a local weights and measures authority and any officer of such an authority there were substituted references to that Department and any of its officers.

(4) Any enactment which authorises the disclosure of information for the purpose of facilitating the enforcement of the Trade Descriptions Act 1968 shall apply as if section 107 were contained in that Act and as if the functions of any person in relation to the enforcement of that section were functions under that Act.

(5) Nothing in this section shall be construed as authorising a local weights and measures authority to bring proceedings in Scotland for an offence.]

Annotations:

Amendments (Textual) F221 S. 107A inserted (6.4.2007) by 1994 c. 33, ss. 165(2), 172(2); S.I. 2007/621, art. 2

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Marginal Citations M7 1968 c. 29.

108 Order for delivery up in criminal proceedings.

(1) The court before which proceedings are brought against a person for an offence under section 107 may, if satisfied that at the time of his arrest or charge—

(a) he had in his possession, custody or control in the course of a business an infringing copy of a copyright work, or

(b) he had in his possession, custody or control an article specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that it had been or was to be used to make infringing copies,

order that the infringing copy or article be delivered up to the copyright owner or to such other person as the court may direct.

(2) For this purpose a person shall be treated as charged with an offence— (a) in England, Wales and Northern Ireland, when he is orally charged or is served

with a summons or indictment; (b) in Scotland, when he is cautioned, charged or served with a complaint or

indictment.

(3) An order may be made by the court of its own motion or on the application of the prosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), and may be made whether or not the person is convicted of the offence, but shall not be made—

(a) after the end of the period specified in section 113 (period after which remedy of delivery up not available), or

(b) if it appears to the court unlikely that any order will be made under section 114 (order as to disposal of infringing copy or other article).

(4) An appeal lies from an order made under this section by a magistrates’ court— (a) in England and Wales, to the Crown Court, and (b) in Northern Ireland, to the county court;

and in Scotland, where an order has been made under this section, the person from whose possession, custody or control the infringing copy or article has been removed may, without prejudice to any other form of appeal under any rule of law, appeal against that order in the same manner as against sentence.

(5) A person to whom an infringing copy or other article is delivered up in pursuance of an order under this section shall retain it pending the making of an order, or the decision not to make an order, undersection 114.

(6) Nothing in this section affects the powers of the court under [F222section 143 of the Powers of Criminal Courts (Sentencing)Act 2000], [F223Part II of the Proceeds of Crime (Scotland) Act 1995] or [F224Article 11 of the Criminal Justice (Northern Ireland) Order 1994] (general provisions as to forfeiture in criminal proceedings).

Annotations:

Amendments (Textual) F222 Words in s. 108(6) substituted (25.8.2000) by 2000 c. 6, ss. 165(3), 168(1), Sch. 9 para. 115 F223 Words in s. 108(6) substituted (1.4.1996) by virtue of 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 70(2)

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F224 Words in s. 108(6) substituted (9.1.1995) by S.I. 1994/2795 (N.I. 15), art. 26(1), Sch. 2 para. 13; S.R. 1994/446, art. 2

109 Search warrants.

(1) Where a justice of the peace (in Scotland, a sheriff or justice of the peace) is satisfied by information on oath given by a constable (in Scotland, by evidence on oath) that there are reasonable grounds for believing—

(a) that an offence under [F225section 107(1), (2) or (2A)] has been or is about to be committed in any premises, and

(b) that evidence that such an offence has been or is about to be committed is in those premises,

he may issue a warrant authorising a constable to enter and search the premises, using such reasonable force as is necessary.

(2) The power conferred by subsection (1) does not, in England and Wales, extend to authorising a search for material of the kinds mentioned in section 9(2) of the M8Police and Criminal Evidence Act 1984 (certain classes of personal or confidential material).

(3) A warrant under this section— (a) may authorise persons to accompany any constable executing the warrant, and (b) remains in force for [F226three months] from the date of its issue.

(4) In executing a warrant issued under this section a constable may seize an article if he reasonably believes that it is evidence that any offence under [F227section 107(1), (2) or (2A)] has been or is about to be committed.

(5) In this section “premises” includes land, buildings [F228fixed or], moveable structures, vehicles, vessels, aircraft and hovercraft.

Annotations:

Amendments (Textual) F225 Words in s. 109(1)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 26(2)(i) (with regs. 31-40) F226 Words in s. 109(3)(b) substituted (1.1.2006) by Serious Organised Crime and Police Act 2005 (c. 15),

ss. 174(1), 178, Sch. 16 para. 6(2); S.I. 2005/3495, art. 2(1)(s) (subject to art. 2(2)) F227 Words in s. 109(4) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 26(2)(ii) (with regs. 31-40) F228 Words in s. 109(5) inserted (20.11.2002) by 2002 c. 25, s. 2(2)(c); S.I. 2002/2749, art. 2

Modifications etc. (not altering text) C48 S. 109(4): power of seizure extended (1.4.2003) by 2001 c. 16, ss. 50, 52-54, 68, 138(2) Sch. 1 Pt. 1

para. 48; S.I. 2003/708, art. 2 S. 109(4) modified (E.W.N.I.) (1.4.2003) by 2001 c. 16, ss. 55, 68, 138(2), Sch. 1 Pt. 3 para. 106 (with s. 57(3)); S.I. 2003/708, art. 2

Marginal Citations M8 1984 c. 60.

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110 Offence by body corporate: liability of officers.

(1) Where an offence under section 107 committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) In relation to a body corporate whose affairs are managed by its members “director” means a member of the body corporate.

Provision for preventing importation of infringing copies

111 Infringing copies may be treated as prohibited goods.

(1) The owner of the copyright in a published literary, dramatic or musical work may give notice in writing to the Commissioners of Customs and Excise—

(a) that he is the owner of the copyright in the work, and (b) that he requests the Commissioners, for a period specified in the notice, to treat

as prohibited goods printed copies of the work which are infringing copies.

(2) The period specified in a notice under subsection (1) shall not exceed five years and shall not extend beyond the period for which copyright is to subsist.

(3) The owner of the copyright in a sound recording or film may give notice in writing to the Commissioners of Customs and Excise—

(a) that he is the owner of the copyright in the work, (b) that infringing copies of the work are expected to arrive in the United

Kingdom at a time and a place specified in the notice, and (c) that he requests the Commissioners to treat the copies as prohibited goods.

[F229F230(3A) The Commissioners may treat as prohibited goods only infringing copies of works which arrive in the United Kingdom—

(a) from outside the European Economic Area, or (b) from within that Area but not having been entered for free circulation.

[F229(3B) This section does not apply to goods placed in, or expected to be placed in, one of the situations referred to in Article 1(1), in respect of which an application may be made under Article 5(1), of Council Regulation (EC) No 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights.]]

(4) When a notice is in force under this section the importation of goods to which the notice relates, otherwise than by a person for his private and domestic use, [F231subject to subsections (3A) and (3B), is prohibited]; but a person is not by reason of the prohibition liable to any penalty other than forfeiture of the goods.

Annotations:

Amendments (Textual) F229 S. 111(3B) substituted (1.7.2004) by The Goods Infringing Intellectual Property Rights (Customs)

Regulations 2004 (S.I. 2004/1473), reg. 12 (with reg. 2(2)(3)) F230 S. 111(3A)(3B) inserted (1.7.1995) by S.I. 1995/1445, reg. 2(2)

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F231 Words in s. 111(4) substituted (1.7.1995) by S.I. 1995/1445, reg. 2(3)

112 Power of Commissioners of Customs and Excise to make regulations.

(1) The Commissioners of Customs and Excise may make regulations prescribing the form in which notice is to be given under section 111 and requiring a person giving notice—

(a) to furnish the Commissioners with such evidence as may be specified in the regulations, either on giving notice or when the goods are imported, or at both those times, and

(b) to comply with such other conditions as may be specified in the regulations.

(2) The regulations may, in particular, require a person giving such a notice— (a) to pay such fees in respect of the notice as may be specified by the regulations; (b) to give such security as may be so specified in respect of any liability or

expense which the Commissioners may incur in consequence of the notice by reason of the detention of any article or anything done to an article detained;

(3) The regulations may make different provision as respects different classes of case to which they apply and may include such incidental and supplementary provisions as the Commissioners consider expedient.

(4) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) F232. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F232 S. 112(5) repealed (18.4.2005) by Commissioners for Revenue and Customs Act 2005 (c. 11), ss.

50(6), 52(2), 53(1), Sch. 4 para. 38, Sch. 5; S.I. 2005/1126, art. 2(2)(h)(i)

Supplementary

113 Period after which remedy of delivery up not available.

(1) An application for an order under section 99 (order for delivery up in civil proceedings) may not be made after the end of the period of six years from the date on which the infringing copy or article in question was made, subject to the following provisions.

(2) If during the whole or any part of that period the copyright owner— (a) is under a disability, or (b) is prevented by fraud or concealment from discovering the facts entitling him

to apply for an order, an application may be made at any time before the end of the period of six years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.

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(3) In subsection (2) “disability”— (a) in England and Wales, has the same meaning as in the M9Limitation Act 1980; (b) in Scotland, means legal disability within the meaning of the M10Prescription

and Limitation (Scotland) Act 1973; (c) in Northern Ireland, has the same meaning as in the M11Statute of Limitations

(Northern Ireland) 1958.

(4) An order under section 108 (order for delivery up in criminal proceedings) shall not, in any case, be made after the end of the period of six years from the date on which the infringing copy or article in question was made.

Annotations:

Marginal Citations M9 1980 c. 58. M10 1973 c. 52. M11 1958 c. 10 (N.I.).

114 Order as to disposal of infringing copy or other article.

(1) An application may be made to the court for an order that an infringing copy or other article delivered up in pursuance of an order under section 99 or 108, or seized and detained in pursuance of the right conferred by section 100, shall be—

(a) forfeited to the copyright owner, or (b) destroyed or otherwise dealt with as the court may think fit,

or for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the court shall consider whether other remedies available in an action for infringement of copyright would be adequate to compensate the copyright owner and to protect his interests.

(3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the copy or other articles, and any such person is entitled—

(a) to appear in proceedings for an order under this section, whether or not he was served with notice, and

(b) to appeal against any order made, whether or not he appeared; and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

(4) Where there is more than one person interested in a copy or other article, the court shall make such order as it thinks just and may (in particular) direct that the article be sold, or otherwise dealt with, and the proceeds divided.

(5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the copy or other article was before being delivered up or seized is entitled to its return.

(6) References in this section to a person having an interest in a copy or other article include any person in whose favour an order could be made in respect of it

[F233(a) under this section or under section 204 or 231 of this Act;

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(b) under section 24D of the Registered Designs Act 1949; (c) under section 19 of Trade Marks Act 1994 (including that section as

applied by regulation 4 of the Community Trade Mark Regulations 2006 (SI 2006/1027)); or

(d) under regulation 1C of the Community Design Regulations 2005 (SI 2005/2339).]

Annotations:

Amendments (Textual) F233 Words in s. 114(6) substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.)

Regulations 2006 (S.I. 2006/1028), reg. 2(1), Sch. 2 para. 7

Modifications etc. (not altering text) C49 S. 114 extended by S.I. 1991/724, art. 2(1)(n)

[F234114AForfeiture of infringing copies, etc.: England and Wales or Northern Ireland

(1) In England and Wales or Northern Ireland where there have come into the possession of any person in connection with the investigation or prosecution of a relevant offence —

(a) infringing copies of a copyright work, or (b) articles specifically designed or adapted for making copies of a particular

copyright work, that person may apply under this section for an order for the forfeiture of the infringing copies or articles.

(2) For the purposes of this section “relevant offence” means— (a) an offence under [F235section 107(1), (2) or (2A)] (criminal liability for making

or dealing with infringing articles, etc.), (b) an offence under the Trade Descriptions Act 1968 (c. 29), or (c) an offence involving dishonesty or deception.

(3) An application under this section may be made— (a) where proceedings have been brought in any court for a relevant offence

relating to some or all of the infringing copies or articles, to that court, or (b) where no application for the forfeiture of the infringing copies or articles has

been made under paragraph (a), by way of complaint to a magistrates’ court.

(4) On an application under this section, the court shall make an order for the forfeiture of any infringing copies or articles only if it is satisfied that a relevant offence has been committed in relation to the infringing copies or articles.

(5) A court may infer for the purposes of this section that such an offence has been committed in relation to any infringing copies or articles if it is satisfied that such an offence has been committed in relation to infringing copies or articles which are representative of the infringing copies or articles in question (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

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(6) Any person aggrieved by an order made under this section by a magistrates’ court, or by a decision of such a court not to make such an order, may appeal against that order or decision—

(a) in England and Wales, to the Crown Court, or (b) in Northern Ireland, to the county court.

(7) An order under this section may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates’ Courts Act 1980 (c. 43) or Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (statement of case)).

(8) Subject to subsection (9), where any infringing copies or articles are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.

(9) On making an order under this section the court may direct that the infringing copies or articles to which the order relates shall (instead of being destroyed) be forfeited to the owner of the copyright in question or dealt with in such other way as the court considers appropriate.]

Annotations:

Amendments (Textual) F234 Ss. 114A, 114B inserted (20.11.2002) by 2002 c. 25, s. 3; S.I. 2002/2749, art. 2 F235 Words in s. 114A(2)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 26(2)(iii) (with regs. 31-40)

F236114BForfeiture of infringing copies, etc.: Scotland

(1) In Scotland the court may make an order under this section for the forfeiture of any— (a) infringing copies of a copyright work, or (b) articles specifically designed or adapted for making copies of a particular

(2) An order under this section may be made— (a) on an application by the procurator-fiscal made in the manner specified in

section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) where a person is convicted of a relevant offence, in addition to any other

penalty which the court may impose.

(3) On an application under subsection (2)(a), the court shall make an order for the forfeiture of any infringing copies or articles only if it is satisfied that a relevant offence has been committed in relation to the infringing copies or articles.

(4) The court may infer for the purposes of this section that such an offence has been committed in relation to any infringing copies or articles if it is satisfied that such an offence has been committed in relation to infringing copies or articles which are representative of the infringing copies or articles in question (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

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(5) The procurator-fiscal making the application under subsection (2)(a) shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the infringing copies or articles to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the infringing copies or articles should not be forfeited.

(6) Service under subsection (5) shall be carried out, and such service may be proved, in the manner specified for citation of an accused in summary proceedings under the Criminal Procedure (Scotland) Act 1995.

(7) Any person upon whom notice is served under subsection (5) and any other person claiming to be the owner of, or otherwise to have an interest in, infringing copies or articles to which an application under this section relates shall be entitled to appear at the hearing of the application to show cause why the infringing copies or articles should not be forfeited.

(8) The court shall not make an order following an application under subsection (2)(a)— (a) if any person on whom notice is served under subsection (5) does not appear,

unless service of the notice on that person is proved, or (b) if no notice under subsection (5) has been served, unless the court is satisfied

that in the circumstances it was reasonable not to serve such notice.

(9) Where an order for the forfeiture of any infringing copies or articles is made following an application under subsection (2)(a), any person who appeared, or was entitled to appear, to show cause why infringing copies or articles should not be forfeited may, within 21 days of the making of the order, appeal to the High Court by Bill of Suspension.

(10) Section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 (c. 46) shall apply to an appeal under subsection (9) as it applies to a stated case under Part 2 of that Act.

(11) An order following an application under subsection (2)(a) shall not take effect— (a) until the end of the period of 21 days beginning with the day after the day on

which the order is made, or (b) if an appeal is made under subsection (9) above within that period, until the

appeal is determined or abandoned.

(12) An order under subsection (2)(b) shall not take effect— (a) until the end of the period within which an appeal against the order could be

brought under the Criminal Procedure (Scotland) Act 1995, or (b) if an appeal is made within that period, until the appeal is determined or

abandoned.

(13) Subject to subsection (14), infringing copies or articles forfeited under this section shall be destroyed in accordance with such directions as the court may give.

(14) On making an order under this section the court may direct that the infringing copies or articles to which the order relates shall (instead of being destroyed) be forfeited to the owner of the copyright in question or dealt with in such other way as the court considers appropriate.

(15) For the purposes of this section—

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“relevant offence” means an offence under [F237section 107(1), (2) or (2A)] (criminal liability for making or dealing with infringing articles, etc.), or under the Trade Descriptions Act 1968 (c. 29) or any offence involving dishonesty or deception;

“the court” means— (a) in relation to an order made on an application under subsection (2)(a),

the sheriff, and (b) in relation to an order made under subsection (2)(b), the court which

imposed the penalty.

Annotations:

Amendments (Textual) F236 Ss. 114A, 114B inserted (20.11.2002) by 2002 c. 25, s. 3; S.I. 2002/2749, art. 2 F237 Words in s. 114B(15) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 26(2)(iv) (with regs. 31-40)

115 Jurisdiction of county court and sheriff court.

(1) In England, Wales and Northern Ireland a county court may entertain proceedings under—

section 99 (order for delivery up of infringing copy or other article), section 102(5) (order as to exercise of rights by copyright owner where exclusive licensee has concurrent rights), or section 114 (order as to disposal of infringing copy or other article),

[F238save that, in Northern Ireland, a county court may entertain such proceedings only]where the value of the infringing copies and other articles in question does not exceed the county court limit for actions in tort.

(2) In Scotland proceedings for an order under any of those provisions may be brought in the sheriff court.

(3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.

Annotations:

Amendments (Textual) F238 Words in s. 115(1) inserted by S.I. 1991/724, art. 2(8), Schedule Pt. I

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CHAPTER VII

Annotations:

Modifications etc. (not altering text) C50 Pt. I Ch. VII (ss. 116-144) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1)-(3)

(with Pt. III)

Licensing schemes and licensing bodies

116 Licensing schemes and licensing bodies.

(1) In this Part a “licensing scheme” means a scheme setting out— (a) the classes of case in which the operator of the scheme, or the person on whose

behalf he acts, is willing to grant copyright licences, and (b) the terms on which licences would be granted in those classes of case;

and for this purpose a “scheme” includes anything in the nature of a scheme, whether described as a scheme or as a tariff or by any other name.

(2) In this Chapter a “licensing body” means a society or other organisation which has as its main object, or one of its main objects, the negotiation or granting, either as owner or prospective owner of copyright or as agent for him, of copyright licences, and whose objects include the granting of licences covering works of more than one author.

(3) In this section “copyright licences” means licences to do, or authorise the doing of, any of the acts restricted by copyright.

(4) References in this Chapter to licences or licensing schemes covering works of more than one author do not include licences or schemes covering only—

(a) a single collective work or collective works of which the authors are the same, or

(b) works made by, or by employees of or commissioned by, a single individual, firm, company or group of companies.

For this purpose a group of companies means a holding company and its subsidiaries, within the meaning of [F239section 1159 of the Companies Act 2006].

Annotations:

Amendments (Textual) F239 Words in s. 116(4) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments,

Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 98(a) (with art. 10)

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References and applications with respect to licensing schemes

[F240117 Licensing schemes to which following sections apply.

Sections 118 to 123 (references and applications with respect to licensing schemes) apply to licensing schemes which are operated by licensing bodies and cover works of more than one author, so far as they relate to licences for—

(a) copying the work, (b) rental or lending of copies of the work to the public, (c) performing, showing or playing the work in public, or

[F241(d) communicating the work to the public;] and references in those sections to a licensing scheme shall be construed accordingly.]

Annotations:

Amendments (Textual) F240 S. 117 substituted (1.12.1996) by S.I. 1996/2967, reg. 15(2) (with Pt. III) F241 S. 117(d) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 4(4) (with regs. 31-40)

118 Reference of proposed licensing scheme to tribunal.

(1) The terms of a licensing scheme proposed to be operated by a licensing body may be referred to the Copyright Tribunal by an organisation claiming to be representative of persons claiming that they require licences in cases of a description to which the scheme would apply, either generally or in relation to any description of case.

(2) The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.

(3) If the Tribunal decides to entertain the reference it shall considerthe matter referred and make such order, either confirming or varying the proposed scheme, either generally or so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.

(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

119 Reference of licensing scheme to tribunal.

(1) If while a licensing scheme is in operation a dispute arises between the operator of the scheme and—

(a) a person claiming that he requires a licence in a case of a description to which the scheme applies, or

(b) an organisation claiming to be representative of such persons, that person or organisation may refer the scheme to the Copyright Tribunal in so far as it relates to cases of that description.

(2) A scheme which has been referred to the Tribunal under this section shall remain in operation until proceedings on the reference are concluded.

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(3) The Tribunal shall consider the matter in dispute and make such order, either confirming or varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.

(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

120 Further reference of scheme to tribunal.

(1) Where the Copyright Tribunal has on a previous reference of a licensing scheme under [F242section 118, 119 or 128A], or under this section, made an order with respect to the scheme, then, while the order remains in force—

(a) the operator of the scheme, (b) a person claiming that he requires a licence in a case of the description to

which the order applies, or (c) an organisation claiming to be representative of such persons,

may refer the scheme again to the Tribunal so far as it relates to cases of that description.

(2) A licensing scheme shall not, except with the special leave of the Tribunal, be referred again to the Tribunal in respect of the same description of cases—

(a) within twelve months from the date of the order on the previous reference, or (b) if the order was made so as to be in force for 15 months or less, until the last

three months before the expiry of the order.

(3) A scheme which has been referred to the Tribunal under this section shall remain in operation until proceedings on the reference are concluded.

(4) The Tribunal shall consider the matter in dispute and make such order, either confirming, varying or further varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.

(5) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

Annotations:

Amendments (Textual) F242 Words in s. 120(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 21(4) (with regs. 31-40)

121 Application for grant of licence in connection with licensing scheme.

(1) A person who claims, in a case covered by a licensing scheme, that the operator of the scheme has refused to grant him or procure the grant to him of a licence in accordance with the scheme, or has failed to do so within a reasonable time after being asked, may apply to the Copyright Tribunal.

(2) A person who claims, in a case excluded from a licensing scheme, that the operator of the scheme either—

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(a) has refused to grant him a licence or procure the grant to him of a licence, or has failed to do so within a reasonable time of being asked, and that in the circumstances it is unreasonable that a licence should not be granted, or

(b) proposes terms for a licence which are unreasonable, may apply to the Copyright Tribunal.

(3) A case shall be regarded as excluded from a licensing scheme for the purposes of subsection (2) if—

(a) the scheme provides for the grant of licences subject to terms excepting matters from the licence and the case falls within such an exception, or

(b) the case is so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be dealt with in the same way.

(4) If the Tribunal is satisfied that the claim is well-founded, it shall make an order declaring that, in respect of the matters specified in the order, the applicant is entitled to a licence on such terms as the Tribunal may determine to be applicable in accordance with the scheme or, as the case may be, to be reasonable in the circumstances.

(5) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

122 Application for review of order as to entitlement to licence.

(1) Where the Copyright Tribunal has made an order under section 121 that a person is entitled to a licence under a licensing scheme, the operator of the scheme or the original applicant may apply to the Tribunal to review its order.

(2) An application shall not be made, except with the special leave of the Tribunal— (a) within twelve months from the date of the order, or of the decision on a

previous application under this section, or (b) if the order was made so as to be in force for 15 months or less, or as a result of

the decision on a previous application under this section is due to expire within 15 months of that decision, until the last three months before the expiry date.

(3) The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable having regard to the terms applicable in accordance with the licensing scheme or, as the case may be, the circumstances of the case.

123 Effect of order of tribunal as to licensing scheme.

(1) A licensing scheme which has been confirmed or varied by the Copyright Tribunal— (a) under section 118 (reference of terms of proposed scheme), or (b) under section 119 or 120 (reference of existing scheme to Tribunal),

shall be in force or, as the case may be, remain in operation, so far as it relates to the description of case in respect of which the order was made, so long as the order remains in force.

(2) While the order is in force a person who in a case of a class to which the order applies— (a) pays to the operator of the scheme any charges payable under the scheme in

respect of a licence covering the case in question or, if the amount cannot be ascertained, gives an undertaking to the operator to pay them when ascertained, and

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(b) complies with the other terms applicable to such a licence under the scheme, shall be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question in accordance with the scheme.

(3) The Tribunal may direct that the order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference was made or, if later, on which the scheme came into operation.

If such a direction is made— (a) any necessary repayments, or further payments, shall be made in respect of

charges already paid, and (b) the reference in subsection (2)(a) to the charges payable under the scheme

shall be construed as a reference to the charges so payable by virtue of the order.

No such direction may be made where subsection (4) below applies.

(4) An order of the Tribunal under section 119 or 120 made with respect to a scheme which is certified for any purpose under section 143 has effect, so far as it varies the scheme by reducing the charges payable for licences, from the date on which the reference was made to the Tribunal.

(5) Where the Tribunal has made an order under section 121 (order as to entitlement to licence under licensing scheme) and the order remains in force, the person in whose favour the order is made shall if he—

(a) pays to the operator of the scheme any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and

(b) complies with the other terms specified in the order, be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.

References and applications with respect to licensing by licensing bodies

[F243124 Licences to which following sections apply.

Sections 125 to 128 (references and applications with respect to licensing by licensing bodies) apply to licences which are granted by a licensing body otherwise than in pursuance of a licensing scheme and cover works of more than one author, so far as they authorise—

(a) copying the work, (b) rental or lending of copies of the work to the public, (c) performing, showing or playing the work in public, or

[F244(d) communicating the work to the public;] and references in those sections to a licence shall be construed accordingly.]

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Annotations:

Amendments (Textual) F243 S. 124 substituted (1.12.1996) by S.I. 1996/2967, reg. 15(3) (with Pt. III) F244 S. 124(d) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 4(4) (with regs. 31-40)

125 Reference to tribunal of proposed licence.

(1) The terms on which a licensing body proposes to grant a licence may be referred to the Copyright Tribunal by the prospective licensee.

(2) The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.

(3) If the Tribunal decides to entertain the reference it shall consider the terms of the proposed licence and make such order, either confirming or varying the terms, as it may determine to be reasonable in the circumstances.

(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

126 Reference to tribunal of expiring licence.

(1) A licensee under a licence which is due to expire, by effluxion of time or as a result of notice given by the licensing body, may apply to the Copyright Tribunal on the ground that it is unreasonable in the circumstances that the licence should cease to be in force.

(2) Such an application may not be made until the last three months before the licence is due to expire.

(3) A licence in respect of which a reference has been made to the Tribunal shall remain in operation until proceedings on the reference are concluded.

(4) If the Tribunal finds the application well-founded, it shall make an order declaring that the licensee shall continue to be entitled to the benefit of the licence on such terms as the Tribunal may determine to be reasonable in the circumstances.

(5) An order of the Tribunal under this section may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

127 Application for review of order as to licence.

(1) Where the Copyright Tribunal has made an order under [F245section 125, 126 or 128B (where that order did not relate to a licensing scheme)], the licensing body or the person entitled to the benefit of the order may apply to the Tribunal to review its order.

(2) An application shall not be made, except with the special leave of the Tribunal— (a) within twelve months from the date of the order or of the decision on a

previous application under this section, or (b) if the order was made so as to be in force for 15 months or less, or as a result of

the decision on a previous application under this section is due to expire within 15 months of that decision, until the last three months before the expiry date.

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(3) The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable in the circumstances.

Annotations:

Amendments (Textual) F245 Words in s. 127(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 21(5) (with regs. 31-40)

128 Effect of order of tribunal as to licence.

(1) Where the Copyright Tribunal has made an order under section 125 or 126 and the order remains in force, the person entitled to the benefit of the order shall if he—

(a) pays to the licensing body any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and

(2) The benefit of the order may be assigned— (a) in the case of an order under section 125, if assignment is not prohibited under

the terms of the Tribunal’s order; and (b) in the case of an order under section 126, if assignment was not prohibited

under the terms of the original licence.

(3) The Tribunal may direct that an order under section 125 or 126, or an order under section 127 varying such an order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference or application was made or, if later, on which the licence was granted or, as the case may be, was due to expire.

If such a direction is made— (a) any necessary repayments, or further payments, shall be made in respect of

charges already paid, and (b) the reference in subsection (1)(a) to the charges payable in accordance with

the order shall be construed, where the order is varied by a later order, as a reference to the charges so payable by virtue of the later order.

[F246128ANotification of licence or licensing scheme for excepted sound recordings F247. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F246 Ss. 128A, 128B inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(3) (with regs. 31-40)

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F247 S. 128A omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010 (S.I. 2010/2694), art. 6

128B References to the Tribunal by the Secretary of State under section 128A F248. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Annotations:

Amendments (Textual) F248 S. 128B omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988 (Amendment)

Regulations 2010 (S.I. 2010/2694), art. 6

Factors to be taken into account in certain classes of case

129 General considerations: unreasonable discrimination.

In determining what is reasonable on a reference or application under this Chapter relating to a licensing scheme or licence, the Copyright Tribunal shall have regard to—

(a) the availability of other schemes, or the granting of other licences, to other persons in similar circumstances, and

(b) the terms of those schemes or licences, and shall exercise its powers so as to secure that there is no unreasonable discrimination between licensees, or prospective licensees, under the scheme or licence to which the reference or application relates and licensees under other schemes operated by, or other licences granted by, the same person.

130 Licences for reprographic copying.

Where a reference or application is made to the Copyright Tribunal under this Chapter relating to the licensing of reprographic copying of published literary, dramatic, musical or artistic works, or the typographical arrangement of published editions, the Tribunal shall have regard to—

(a) the extent to which published editions of the works in question are otherwise available,

(b) the proportion of the work to be copied, and (c) the nature of the use to which the copies are likely to be put.

131 Licences for educational establishments in respect of works included in broadcasts F249. . . .

(1) This section applies to references or applications under this Chapter relating to licences for the recording by or on behalf of educational establishments of broadcasts F250. . . which include copyright works, or the making of copies of such recordings, for educational purposes.

(2) The Copyright Tribunal shall, in considering what charges (if any) should be paid for a licence, have regard to the extent to which the owners of copyright in the works

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included in the broadcast . . . have already received, or are entitled to receive, payment in respect of their inclusion.

Annotations:

Amendments (Textual) F249 Words in s. 131 heading repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F250 Words in s. 131(1)(2) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

132 Licences to reflect conditions imposed by promoters of events.

(1) This section applies to references or applications under this Chapter in respect of licences relating to sound recordings, films [F251or broadcasts] which include, or are to include, any entertainment or other event.

(2) The Copyright Tribunal shall have regard to any conditions imposed by the promoters of the entertainment or other event; and, in particular, the Tribunal shall not hold a refusal or failure to grant a licence to be unreasonable if it could not have been granted consistently with those conditions.

(3) Nothing in this section shall require the Tribunal to have regard to any such conditions in so far as they—

(a) purport to regulate the charges to be imposed in respect of the grant of licences, or

(b) relate to payments to be made to the promoters of any event in consideration of the grant of facilities for making the recording, film [F252or broadcast].

Annotations:

Amendments (Textual) F251 Words in s. 132(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 3 para. 3(2)(a) (with regs. 31-40) F252 Words in s. 132(3)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(j) (with regs. 31-40)

133 Licences to reflect payments in respect of underlying rights.

[F253(1) In considering what charges should be paid for a licence— (a) on a reference or application under this Chapter relating to licences for the

rental or lending of copies of a work, or (b) on an application under section 142 (royalty or other sum payable for

lending of certain works), the Copyright Tribunal shall take into account any reasonable payments which the owner of the copyright in the work is liable to make in consequence of the granting of the licence, or of the acts authorised by the licence, to owners of copyright in works included in that work.]

(2) On any reference or application under this Chapter relating to licensing in respect of the copyright in sound recordings, films [F254or broadcasts], the Copyright Tribunal shall take into account, in considering what charges should be paid for a licence, any

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reasonable payments which the copyright owner is liable to make in consequence of the granting of the licence, or of the acts authorised by the licence, in respect of any performance included in the recording, film [F255or broadcast].

Annotations:

Amendments (Textual) F253 S. 133(1) substituted (1.12.1996) by S.I. 1996/2967, reg. 13(1) (with Pt. III) F254 Words in s. 133(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 3 para. 3(2)(b) (with regs. 31-40) F255 Words in s. 133(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 3 para. 3(1)(k) (with regs. 31-40)

134 Licences in respect of works included in re-transmissions.

(1) [F256Subject to subsection (3A)] this section applies to references or applications under this Chapter relating to licences to include in a broadcast F257. . . —

(a) literary, dramatic, musical or artistic works, or, (b) sound recordings or films,

where one broadcast . . . (“the first transmission”) is, by reception and immediate re- transmission, to be further broadcast . . . (“the further transmission”).

(2) So far as the further transmission is to the same area as the first transmission, the Copyright Tribunal shall, in considering what charges (if any) should be paid for licences for either transmission, have regard to the extent to which the copyright owner has already received, or is entitled to receive, payment for the other transmission which adequately remunerates him in respect of transmissions to that area.

(3) So far as the further transmission is to an area outside that to which the first transmission was made, the Tribunal shall . . . leave the further transmission out of account in considering what charges (if any) should be paid for licences for the first transmission.

[F258(3A) This section does not apply in relation to any application under section 73A (royalty or other sum payable in pursuance of section 73(4)).]

F259(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F256 Words in s. 134(1) inserted (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 2(2) (with s. 43(6)); S.I.

1996/2120, art. 4(1), Sch. 1 F257 Words in s. 134(1)(3) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F258 S. 134(3A) inserted (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 2(3) (with s. 43(6)); S.I.

1996/2120, art. 4(1), Sch. 1 F259 S. 134(4) repealed by Broadcasting Act 1990 (c. 42, SIF 96), s. 203(3), Sch. 21

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135 Mention of specific matters not to exclude other relevant considerations.

The mention in sections 129 to 134 of specific matters to which the Copyright Tribunal is to have regard in certain classes of case does not affect the Tribunal’s general obligation in any case to have regard to all relevant considerations.

[F260 Use as of right of sound recordings in broadcasts F261. . .

Annotations:

Amendments (Textual) F260 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1) F261 Words in heading preceding s. 135A repealed (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

135A Circumstances in which right available.

(1) Section 135C applies to the inclusion in a broadcast F262. . . of any sound recordings if—

(a) a licence to include those recordings in the broadcast . . . could be granted by a licensing body or such a body could procure the grant of a licence to do so,

(b) the condition in subsection (2) or (3) applies, and (c) the person including those recordings in the broadcast . . . has complied with

section 135B.

(2) Where the person including the recordings in the broadcast . . . does not hold a licence to do so, the condition is that the licensing body refuses to grant, or procure the grant of, such a licence, being a licence—

(a) whose terms as to payment for including the recordings in the broadcast . . . would be acceptable to him or comply with an order of the Copyright Tribunal under section 135D relating to such a licence or any scheme under which it would be granted, and

(b) allowing unlimited needletime or such needletime as he has demanded.

(3) Where he holds a licence to include the recordings in the broadcast . . . , the condition is that the terms of the licence limit needletime and the licensing body refuses to substitute or procure the substitution of terms allowing unlimited needletime or such needletime as he has demanded, or refuses to do so on terms that fall within subsection (2)(a).

(4) The references in subsection (2) to refusing to grant, or procure the grant of, a licence, and in subsection (3) to refusing to substitute or procure the substitution of terms, include failing to do so within a reasonable time of being asked.

(5) In the group of sections from this section to section 135G— [F263“broadcast” does not include any broadcast which is a transmission of

the kind specified in section 6(1A)(b) or (c);] “needletime” means the time in any period (whether determined as a

number of hours in the period or a proportion of the period, or otherwise) in which any recordings may be included in a broadcast . . . ;

“sound recording” does not include a film sound track when accompanying a film.

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(6) In sections 135B to 135G, “terms of payment” means terms as to payment for including sound recordings in a broadcast . . . .]

Annotations:

Amendments (Textual) F262 Words in s. 135A repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F263 S. 135A(5): definition of "broadcast" inserted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(1) (with regs. 31-40)

[F264135BNotice of intention to exercise right.

(1) A person intending to avail himself of the right conferred by section 135C must— (a) give notice to the licensing body of his intention to exercise the right, asking

the body to propose terms of payment, and (b) after receiving the proposal or the expiry of a reasonable period, give

reasonable notice to the licensing body of the date on which he proposes to begin exercising that right, and the terms of payment in accordance with which he intends to do so.

(2) Where he has a licence to include the recordings in a broadcast F265. . . , the date specified in a notice under subsection (1)(b) must not be sooner than the date of expiry of that licence except in a case falling within section 135A(3).

(3) Before the person intending to avail himself of the right begins to exercise it, he must— (a) give reasonable notice to the Copyright Tribunal of his intention to exercise

the right, and of the date on which he proposes to begin to do so, and (b) apply to the Tribunal under section 135D to settle the terms of payment.]

Annotations:

Amendments (Textual) F264 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1) F265 Words in s. 135B(2) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F266135CConditions for exercise of right.

(1) A person who, on or after the date specified in a notice under section 135B(1)(b), includes in a broadcast F267. . . any sound recordings in circumstances in which this section applies, and who—

(a) complies with any reasonable condition, notice of which has been given to him by the licensing body, as to inclusion in the broadcast . . . of those recordings,

(b) provides that body with such information about their inclusion in the broadcast . . . as it may reasonably require, and

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shall be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question.

(2) Payments are to be made at not less than quarterly intervals in arrears.

(3) The amount of any payment is that determined in accordance with any order of the Copyright Tribunal under section 135D or, if no such order has been made—

(a) in accordance with any proposal for terms of payment made by the licensing body pursuant to a request under section 135B, or

(b) where no proposal has been so made or the amount determined in accordance with the proposal so made is unreasonably high, in accordance with the terms of payment notified to the licensing body under section 135B(1)(b).

(4) Where this section applies to the inclusion in a broadcast . . . of any sound recordings, it does so in place of any licence.]

Annotations:

Amendments (Textual) F266 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1) F267 Words in s. 135C(1)(4) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F268135DApplications to settle payments.

(1) On an application to settle the terms of payment, the Copyright Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.

(2) An order under subsection (1) has effect from the date the applicant begins to exercise the right conferred by section 135C and any necessary repayments, or further payments, shall be made in respect of amounts that have fallen due.]

Annotations:

Amendments (Textual) F268 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1)

[F269135EReferences etc. about conditions, information and other terms.

(1) A person exercising the right conferred by section 135C, or who has given notice to the Copyright Tribunal of his intention to do so, may refer to the Tribunal—

(a) any question whether any condition as to the inclusion in a broadcast F270. . . of sound recordings, notice of which has been given to him by the licensing body in question, is a reasonable condition, or

(b) any question whether any information is information which the licensing body can reasonably require him to provide.

(2) On a reference under this section, the Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.]

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Annotations:

Amendments (Textual) F269 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1) F270 Words in s. 135E(1)(a) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F271135FApplication for review of order.

(1) A person exercising the right conferred by section 135C or the licensing body may apply to the Copyright Tribunal to review any order under section 135D or 135E.

(2) An application shall not be made, except with the special leave of the Tribunal— (a) within twelve months from the date of the order, or of the decision on a

previous application under this section, or (b) if the order was made so as to be in force for fifteen months or less, or as a

result of a decision on a previous application is due to expire within fifteen months of that decision, until the last three months before the expiry date.

(3) On the application the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances.

(4) An order under this section has effect from the date on which it is made or such later date as may be specified by the Tribunal.]

Annotations:

Amendments (Textual) F271 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1)

[F272135GFactors to be taken into account.

(1) In determining what is reasonable on an application or reference under section 135D or 135E, or on reviewing any order under section 135F, the Copyright Tribunal shall—

(a) have regard to the terms of any orders which it has made in the case of persons in similar circumstances exercising the right conferred by section 135C, and

(b) exercise its powers so as to secure that there is no unreasonable discrimination between persons exercising that right against the same licensing body.

(2) In settling the terms of payment under section 135D, the Tribunal shall not be guided by any order it has made under any enactment other than that section.

(3) Section 134 (factors to be taken into account: retransmissions) applies on an application or reference under sections 135D to 135F as it applies on an application or reference relating to a licence.]

Annotations:

Amendments (Textual) F272 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1)

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[F273135HPower to amend sections 135A to 135G.

(1) The Secretary of State may by order, subject to such transitional provision as appears to him to be appropriate, amend sections 135A to 135G so as—

(a) to include in any reference to sound recordings any works of a description specified in the order; or

(b) to exclude from any reference to a broadcast F274. . . any broadcast . . . of a description so specified.

(2) An order shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.]

Annotations:

Amendments (Textual) F273 S. 135H inserted (1.11.1996) by 1996 c. 55, s. 139(1) (with s. 43(6)); S.I. 1996/2120, art. 5, Sch. 2 F274 Words in s. 135H(1)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

Implied indemnity in schemes or licences for reprographic copying

136 Implied indemnity in certain schemes and licences for reprographic copying.

(1) This section applies to— (a) schemes for licensing reprographic copying of published literary, dramatic,

musical or artistic works, or the typographical arrangement of published editions, and

(b) licences granted by licensing bodies for such copying, where the scheme or licence does not specify the works to which it applies with such particularity as to enable licensees to determine whether a work falls within the scheme or licence by inspection of the scheme or licence and the work.

(2) There is implied— (a) in every scheme to which this section applies an undertaking by the operator

of the scheme to indemnify a person granted a licence under the scheme, and (b) in every licence to which this section applies an undertaking by the licensing

body to indemnify the licensee, against any liability incurred by him by reason of his having infringed copyright by making or authorising the making of reprographic copies of a work in circumstances within the apparent scope of his licence.

(3) The circumstances of a case are within the apparent scope of a licence if— (a) it is not apparent from inspection of the licence and the work that it does not

fall within the description of works to which the licence applies; and (b) the licence does not expressly provide that it does not extend to copyright of

the description infringed.

(4) In this section “liability” includes liability to pay costs; and this section applies in relation to costs reasonably incurred by a licensee in connection with actual or

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contemplated proceedings against him for infringement of copyright as it applies to sums which he is liable to pay in respect of such infringement.

(5) A scheme or licence to which this section applies may contain reasonable provision— (a) with respect to the manner in which, and time within which, claims under the

undertaking implied by this section are to be made; (b) enabling the operator of the scheme or, as the case may be, the licensing

body to take over the conduct of any proceedings affecting the amount of his liability to indemnify.

Reprographic copying by educational establishments

137 Power to extend coverage of scheme or licence.

(1) This section applies to— (a) a licensing scheme to which sections 118 to 123 apply (see section 117) and

which is operated by a licensing body, or (b) a licence to which sections 125 to 128 apply (see section 124),

so far as it provides for the grant of licences, or is a licence, authorising the making by or on behalf of educational establishments for the purposes of instruction of reprographic copies of published literary, dramatic, musical or artistic works, or of the typographical arrangement of published editions.

(2) If it appears to the Secretary of State with respect to a scheme or licence to which this section applies that—

(a) works of a description similar to those covered by the scheme or licence are unreasonably excluded from it, and

(b) making them subject to the scheme or licence would not conflict with the normal exploitation of the works or unreasonably prejudice the legitimate interests of the copyright owners,

he may by order provide that the scheme or licence shall extend to those works.

(3) Where he proposes to make such an order, the Secretary of State shall give notice of the proposal to—

(a) the copyright owners, (b) the licensing body in question, and (c) such persons or organisations representative of educational establishments,

and such other persons or organisations, as the Secretary of State thinks fit.

(4) The notice shall inform those persons of their right to make written or oral representations to the Secretary of State about the proposal within six months from the date of the notice; and if any of them wishes to make oral representations, the Secretary of State shall appoint a person to hear the representations and report to him.

(5) In considering whether to make an order the Secretary of State shall take into account any representations made to him in accordance with subsection (4), and such other matters as appear to him to be relevant.

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Annotations:

Modifications etc. (not altering text) C51 Ss. 137–141 extended by S.I. 1989/1067, art. 2

138 Variation or discharge of order extending scheme or licence.

(1) The owner of the copyright in a work in respect of which an order is in force under section 137 may apply to the Secretary of State for the variation or discharge of the order, stating his reasons for making the application.

(2) The Secretary of State shall not entertain an application made within two years of the making of the original order, or of the making of an order on a previous application under this section, unless it appears to him that the circumstances are exceptional.

(3) On considering the reasons for the application the Secretary of State may confirm the order forthwith; if he does not do so, he shall give notice of the application to—

(a) the licensing body in question, and (b) such persons or organisations representative of educational establishments,

and such other persons or organisations, as he thinks fit.

(4) The notice shall inform those persons of their right to make written or oral representations to the Secretary of State about the application within the period of two months from the date of the notice; and if any of them wishes to make oral representations, the Secretary of State shall appoint a person to hear the representations and report to him.

(5) In considering the application the Secretary of State shall take into account the reasons for the application, any representations made to him in accordance with subsection (4), and such other matters as appear to him to be relevant.

(6) The Secretary of State may make such order as he thinks fit confirming or discharging the order (or, as the case may be, the order as previously varied), or varying (or further varying) it so as to exclude works from it.

Annotations:

Modifications etc. (not altering text) C52 Ss. 137–141 extended by S.I. 1989/1067, art. 2

139 Appeals against orders.

(1) The owner of the copyright in a work which is the subject of an order under section 137 (order extending coverage of scheme or licence) may appeal to the Copyright Tribunal which may confirm or discharge the order, or vary it so as to exclude works from it, as it thinks fit having regard to the considerations mentioned in subsection (2) of that section.

(2) Where the Secretary of State has made an order under section 138 (order confirming, varying or discharging order extending coverage of scheme or licence)—

(a) the person who applied for the order, or

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(b) any person or organisation representative of educational establishments who was given notice of the application for the order and made representations in accordance with subsection (4) of that section,

may appeal to the Tribunal which may confirm or discharge the order or make any other order which the Secretary of State might have made.

(3) An appeal under this section shall be brought within six weeks of the making of the order or such further period as the Tribunal may allow.

(4) An order under section 137 or 138 shall not come into effect until the end of the period of six weeks from the making of the order or, if an appeal is brought before the end of that period, until the appeal proceedings are disposed of or withdrawn.

(5) If an appeal is brought after the end of that period, any decision of the Tribunal on the appeal does not affect the validity of anything done in reliance on the order appealed against before that decision takes effect.

Annotations:

Modifications etc. (not altering text) C53 Ss. 137–141 extended by S.I. 1989/1067, art. 2

140 Inquiry whether new scheme or general licence required.

(1) The Secretary of State may appoint a person to inquire into the question whether new provision is required (whether by way of a licensing scheme or general licence) to authorise the making by or on behalf of educational establishments for the purposes of instruction of reprographic copies of—

(a) published literary, dramatic, musical or artistic works, or (b) the typographical arrangement of published editions,

of a description which appears to the Secretary of State not to be covered by an existing licensing scheme or general licence and not to fall within the power conferred by section 137 (power to extend existing schemes and licences to similar works).

(2) The procedure to be followed in relation to an inquiry shall be such as may be prescribed by regulations made by the Secretary of State.

(3) The regulations shall, in particular, provide for notice to be given to— (a) persons or organisations appearing to the Secretary of State to represent the

owners of copyright in works of that description, and (b) persons or organisations appearing to the Secretary of State to represent

educational establishments, and for the making of written or oral representations by such persons; but without prejudice to the giving of notice to, and the making of representations by, other persons and organisations.

(4) The person appointed to hold the inquiry shall not recommend the making of new provision unless he is satisfied—

(a) that it would be of advantage to educational establishments to be authorised to make reprographic copies of the works in question, and

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(b) that making those works subject to a licensing scheme or general licence would not conflict with the normal exploitation of the works or unreasonably prejudice the legitimate interests of the copyright owners.

(5) If he does recommend the making of new provision he shall specify any terms, other than terms as to charges payable, on which authorisation under the new provision should be available.

(6) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) In this section (and section 141) a “general licence” means a licence granted by a licensing body which covers all works of the description to which it applies.

Annotations:

Modifications etc. (not altering text) C54 Ss. 137–141 extended by S.I. 1989/1067, art. 2

141 Statutory licence where recommendation not implemented.

(1) The Secretary of State may, within one year of the making of a recommendation under section 140 by order provide that if, or to the extent that, provision has not been made in accordance with the recommendation, the making by or on behalf of an educational establishment, for the purposes of instruction, of reprographic copies of the works to which the recommendation relates shall be treated as licensed by the owners of the copyright in the works.

(2) For that purpose provision shall be regarded as having been made in accordance with the recommendation if—

(a) a certified licensing scheme has been established under which a licence is available to the establishment in question, or

(b) a general licence has been— (i) granted to or for the benefit of that establishment, or

(ii) referred by or on behalf of that establishment to the Copyright Tribunal under section 125 (reference of terms of proposed licence), or

(iii) offered to or for the benefit of that establishment and refused without such a reference,

and the terms of the scheme or licence accord with the recommendation.

(3) The order shall also provide that any existing licence authorising the making of such copies (not being a licence granted under a certified licensing scheme or a general licence) shall cease to have effect to the extent that it is more restricted or more onerous than the licence provided for by the order.

(4) The order shall provide for the licence to be free of royalty but, as respects other matters, subject to any terms specified in the recommendation and to such other terms as the Secretary of State may think fit.

(5) The order may provide that where a copy which would otherwise be an infringing copy is made in accordance with the licence provided by the order but is subsequently

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dealt with, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.

In this subsection “dealt with” means sold or let for hire, offered or exposed for sale or hire, or exhibited in public.

(6) The order shall not come into force until at least six months after it is made.

(7) An order may be varied from time to time, but not so as to include works other than those to which the recommendation relates or remove any terms specified in the recommendation, and may be revoked.

(8) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(9) In this section a “certified licensing scheme” means a licensing scheme certified for the purposes of this section under section 143.

Annotations:

Modifications etc. (not altering text) C55 Ss. 137–141 extended by S.I. 1989/1067, art. 2

[F275Royalty or other sum payable for lending of certain works]

Annotations:

Amendments (Textual) F275 S. 142 and crossheading substituted (1.12.1996) by S.I. 1996/2967, reg. 13(2) (with Pt. III)

[F276142 Royalty or other sum payable for lending of certain works.

(1) An application to settle the royalty or other sum payable in pursuance of section 66 (lending of copies of certain copyright works) may be made to the Copyright Tribunal by the copyright owner or the person claiming to be treated as licensed by him.

(2) The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.

(5) An order under subsection (3) has effect from the date on which it is made or such later date as may be specified by the Tribunal.]

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Annotations:

Amendments (Textual) F276 S. 142 substituted (1.12.1996) by S.I. 1996/2967, reg. 13(2) (with Pt. III)

Certification of licensing schemes

143 Certification of licensing schemes.

(1) A person operating or proposing to operate a licensing scheme may apply to the Secretary of State to certify the scheme for the purposes of—

(a) section 35 (educational recording of broadcasts F277. . . ), (b) section 60 (abstracts of scientific or technical articles),

[F278(c) section 66 (lending to public of copies of certain works),] (d) section 74 (sub-titled copies of broadcasts . . . for people who are deaf or hard

of hearing), or (e) section 141 (reprographic copying of published works by educational

establishments).

(2) The Secretary of State shall by order made by statutory instrument certify the scheme if he is satisfied that it—

(a) enables the works to which it relates to be identified with sufficient certainty by persons likely to require licences, and

(b) sets out clearly the charges (if any) payable and the other terms on which licences will be granted.

(3) The scheme shall be scheduled to the order and the certification shall come into operation for the purposes of section 35, 60, 66, 74 or 141, as the case may be—

(a) on such date, not less than eight weeks after the order is made, as may be specified in the order, or

(b) if the scheme is the subject of a reference under section 118 (reference of proposed scheme), any later date on which the order of the Copyright Tribunal under that section comes into force or the reference is withdrawn.

(4) A variation of the scheme is not effective unless a corresponding amendment of the order is made; and the Secretary of State shall make such an amendment in the case of a variation ordered by the Copyright Tribunal on a reference under section 118, 119 or 120, and may do so in any other case if he thinks fit.

(5) The order shall be revoked if the scheme ceases to be operated and may be revoked if it appears to the Secretary of State that it is no longer being operated according to its terms.

Annotations:

Amendments (Textual) F277 Words in s. 143(1)(a)(d) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F278 S. 143(1)(c) substituted (1.12.1996) by S.I. 1996/2967, reg. 11(4) (with Pt. III)

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Powers exercisable in consequence of competition report

144 Powers exercisable in consequence of report of Monopolies and Mergers Commission.

[F279(1) Subsection (1A) applies where whatever needs to be remedied, mitigated or prevented by the Secretary of State, the Office of Fair Trading or (as the case may be) the Competition Commission under section 12(5) of the Competition Act 1980 or section 41(2), 55(2), 66(6), 75(2), 83(2), 138(2), 147(2) or 160(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following references to the Commission in connection with public bodies and certain other persons, mergers or market investigations) consists of or includes—

(a) conditions in licences granted by the owner of copyright in a work restricting the use of the work by the licensee or the right of the copyright owner to grant other licences; or

(b) a refusal of a copyright owner to grant licences on reasonable terms.

(1A) The powers conferred by Schedule 8 to the Enterprise Act 2002 include power to cancel or modify those conditions and, instead or in addition, to provide that licences in respect of the copyright shall be available as of right.

(2) The references to anything permitted by Schedule 8 to the Enterprise Act 2002 in section 12(5A) of the Competition Act 1980 and in sections 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a) and 164(1) of, and paragraphs 5, 10 and 11 of Schedule 7 to, the Act of 2002 shall be construed accordingly.]

(2) The references in sections 56(2) and 73(2) of that Act, and [F280section] 12(5) of the M12Competition Act 1980, to the powers specified in that Part of that Schedule shall be construed accordingly.

(3) [F281The Secretary of State, the Office of Fair Trading or (as the case may be) the Competition Commission] shall only exercise the powers available by virtue of this section if he [F282or it] is satisfied that to do so does not contravene any Convention relating to copyright to which the United Kingdom is a party.

(4) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the Copyright Tribunal on an application by the person requiring the licence; and terms so settled shall authorise the licensee to do everything in respect of which a licence is so available.

(5) Where the terms of a licence are settled by the Tribunal, the licence has effect from the date on which the application to the Tribunal was made.

Annotations:

Amendments (Textual) F279 S. 144(1)(1A)(2) substituted (20.6.2003 for certain purposes and 29.12.2004 otherwise) for s. 144(1)

(2) by 2002 c. 40, ss. 278(1), 279, Sch. 25 para. 18(2); S.I. 2003/1397, arts. 2, 3(1), Sch. (with arts. 4-12); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

F280 Words in s. 144(2) substituted (1.3.2000) by S.I. 2000/311, art. 22(2) F281 Words in s. 144(3) substituted (20.6.2003 for certain purposes and 29.12.2004 otherwise) by 2002

c. 40, ss. 278(1), 279, Sch. 25 para. 18(3)(a); S.I. 2003/1397, arts. 2, 3(1), Sch. (with arts. 4-12); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

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F282 Words in s. 144(3) inserted (20.6.2003 for certain purposes and 29.12.2004 otherwise) by 2002 c. 40, ss. 278(1), 279, Sch. 25 para. 18(3)(b); S.I. 2003/1397, arts. 2, 3(1), Sch. (with arts. 4-12); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

Modifications etc. (not altering text) C56 S. 144(1) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order

2003 (S.I. 2003/1592), art. 16, Sch. 4 para. 7(1)(a) C57 S. 144(2) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order

2003 (S.I. 2003/1592), art. 16, Sch. 4 para. 7(1)(b)

Marginal Citations M12 1980 c. 21.

[F283Compulsory collective administration of certain rights]

Annotations:

Amendments (Textual) F283 S. 144A and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 7 (with Pt. III)

[F284144ACollective exercise of certain rights in relation to cable re-transmission.

(1) This section applies to the right of the owner of copyright in a literary, dramatic, musical or artistic work, sound recording or film to grant or refuse authorisation for cable re-transmission of a [F285wireless] broadcast from another EEA F286. . . state in which the work is included. That right is referred to below as “cable re-transmission right”.

(2) Cable re-transmission right may be exercised against a cable operator only through a licensing body.

(3) Where a copyright owner has not transferred management of his cable re-transmission right to a licensing body, the licensing body which manages rights of the same category shall be deemed to be mandated to manage his right. Where more than one licensing body manages rights of that category, he may choose which of them is deemed to be mandated to manage his right.

(4) A copyright owner to whom subsection (3) applies has the same rights and obligations resulting from any relevant agreement between the cable operator and the licensing body as have copyright owners who have transferred management of their cable re- transmission right to that licensing body.

(5) Any rights to which a copyright owner may be entitled by virtue of subsection (4) must be claimed within the period of three years beginning with the date of the cable re-transmission concerned.

(6) This section does not affect any rights exercisable by the maker of the broadcast, whether in relation to the broadcast or a work included in it.

[F287(7) In this section— “cable operator” means a person responsible for cable re-transmission of

a wireless broadcast; and

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“cable re-transmission” means the reception and immediate re- transmission by cable, including the transmission of microwave energy between terrestrial fixed points, of a wireless broadcast.]]

Annotations:

Amendments (Textual) F284 S. 144A inserted (1.12.1996) by S.I. 1996/2967, reg. 7 (with Pt. III) F285 Word in s. 144A(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 5(6) (with regs. 31-40) F286 Word in s. 144A(1) repealed (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations

2006 (S.I. 2006/1028), reg. 2(4), Sch. 4 F287 S. 144A(7) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 15(2) (with regs. 31-40)

CHAPTER VIII

THE COPYRIGHT TRIBUNAL

Annotations:

Modifications etc. (not altering text) C58 Pt. I Ch. VIII (ss. 145-152) applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Pt. I Ch. VIII (ss. 145-152) applied (1.1.1998) by S.I. 1997/3032, reg. 25(2) (with Pt. IV)

The Tribunal

145 The Copyright Tribunal.

(1) The Tribunal established under section 23 of the M13Copyright Act 1956 is renamed the Copyright Tribunal.

(2) The Tribunal shall consist of a chairman and two deputy chairmen appointed by the Lord Chancellor, after consultation with the Lord Advocate, and not less than two or more than eight ordinary members appointed by the Secretary of State.

(3) A person is not eligible for appointment as chairman or deputy chairman [F288unless— [F289(a) he satisfies the judicial-appointment eligibility condition on a 5-year basis;]

(b) he is an advocate or solicitor in Scotland of at least [F2905] years’ standing; (c) he is a member of the Bar of Northern Ireland or [F291solicitor of the Court of

Judicature of Northern Ireland] of at least [F2905] years’ standing; or (d) he has held judicial office.]

Annotations:

Amendments (Textual) F288 Words substituted by Courts and Legal Services Act 1990 (c. 41, SIF 37), s. 71(2), Sch. 10 para. 73 F289 S. 145(3)(a) substituted (21.7.2008) by Tribunals, Courts and Enforcement Act 2007 (c. 15), ss. 50(6),

148, Sch. 10 para. 20(2); S.I. 2008/1653, art. 2(b)(d) (with arts. 3, 4)

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F290 Words in s. 145(3)(b)(c) substituted (21.7.2008) by Tribunals, Courts and Enforcement Act 2007 (c.15), ss. 50(6), 148, Sch. 10 para. 20(3); S.I. 2008/1653, art. 2(b)(d) (with arts. 3, 4)

F291 S. 145(3)(c): words wherever they occur in any enactment substituted (1.10.2009) by virtue of Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 5; S.I. 2009/1604, art. 2

Modifications etc. (not altering text) C59 S. 145: functions of the Lord Advocate transferred to the Secretary of State, and all property, rights

and liabilities to which the Lord Advocate is entitled or subject in connection with any such function transferred to the Secretary of State for Scotland (19.5.1999) by S.I. 1999/678, arts. 2, 3, Sch. (with art. 7) S. 145 modified (30.6.1999) by S.I. 1999/1748, art. 3, Sch. 1 para. 10

C60 S. 145(2): transfer of certain functions (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1(with art. 7); S.I. 1998/3178, art. 3

Marginal Citations M13 1956 c. 74.

146 Membership of the Tribunal.

(1) The members of the Copyright Tribunal shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.

(2) A member of the Tribunal may resign his office by notice in writing to the Secretary of State or, in the case of the chairman or a deputy chairman, to the Lord Chancellor.

(3) The Secretary of State or, in the case of the chairman or a deputy chairman, the Lord Chancellor may by notice in writing to the member concerned remove him from office if—

(a) he has become bankrupt or made an arrangement with his creditors or, in Scotland, his estate has been sequestrated or he has executed a trust deed for his creditors or entered into a composition contract, or

(b) he is incapacitated by physical or mental illness, or if he is in the opinion of the Secretary of State or, as the case may be, the Lord Chancellor otherwise unable or unfit to perform his duties as member.

[F292(3A) A person who is the chairman or a deputy chairman of the Tribunal shall vacate his office on the day on which he attains the age of 70 years; but this subsection is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office up to the age of 75 years).]

(4) If a member of the Tribunal is by reason of illness, absence or other reasonable cause for the time being unable to perform the duties of his office, either generally or in relation to particular proceedings, a person may be appointed to discharge his duties for a period not exceeding six months at one time or, as the case may be, in relation to those proceedings.

(5) The appointment shall be made— (a) in the case of the chairman or deputy chairman, by the Lord Chancellor, who

shall appoint a person who would be eligible for appointment to that office, and

(b) in the case of an ordinary member, by the Secretary of State;

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and a person so appointed shall have during the period of his appointment, or in relation to the proceedings in question, the same powers as the person in whose place he is appointed.

(6) The Lord Chancellor shall consult the Lord Advocate before exercising his powers under this section.

[F293(7) The Lord Chancellor may exercise his powers to remove a person under subsection (3) or to appoint a person under subsection (4) only with the concurrence of the appropriate senior judge.

(8) The appropriate senior judge is the Lord Chief Justice of England and Wales, unless— (a) the person to be removed exercises functions [F294, or the person to be

appointed is to exercise functions,] wholly or mainly in Scotland, in which case it is the Lord President of the Court of Session, or

(b) the person to be removed exercises functions [F294, or the person to be appointed is to exercise functions,] wholly or mainly in Northern Ireland, in which case it is the Lord Chief Justice of Northern Ireland.

(9) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (7) in relation to the appointment of a person under subsection (4).

(10) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under subsection (7) in relation to the appointment of a person under subsection (4).

(11) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under subsection (7) in relation to the appointment of a person under subsection (4)—

(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;

(b) a Lord Justice of Appeal (as defined in section 88 of that Act).]

Annotations:

Amendments (Textual) F292 S. 146(3A) inserted (31.3.1995) by 1993 c. 8, s. 26, Sch. 6 para.49; S.I. 1995/631, art. 2 F293 S. 146(7)-(11) inserted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15(1), 148, Sch. 4

para. 199(2); S.I. 2006/1014, art. 2(a), Sch. 1 paras. 10, 11(r) F294 Words in s. 146(8) inserted (3.4.2006) by The Lord Chancellor (Transfer of Functions and

Supplementary Provisions) (No.2) Order 2006 (S.I. 2006/1016), art. 4, Sch. 3

147 Financial provisions.

(1) There shall be paid to the members of the Copyright Tribunal such remuneration (whether by way of salaries or fees), and such allowances, as the Secretary of State with the approval of the Treasury may determine.

(2) The Secretary of State may appoint such staff for the Tribunal as, with the approval of the Treasury as to numbers and remuneration, he may determine.

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(3) The remuneration and allowances of members of the Tribunal, the remuneration of any staff and such other expenses of the Tribunal as the Secretary of State with the approval of the Treasury may determine shall be paid out of money provided by Parliament.

148 Constitution for purposes of proceedings.

(1) For the purposes of any proceedings the Copyright Tribunal shall consist of— (a) a chairman, who shall be either the chairman or a deputy chairman of the

Tribunal, and (b) two or more ordinary members.

(2) If the members of the Tribunal dealing with any matter are not unanimous, the decision shall be taken by majority vote; and if, in such a case, the votes are equal the chairman shall have a further, casting vote.

(3) Where part of any proceedings before the Tribunal has been heard and one or more members of the Tribunal are unable to continue, the Tribunal shall remain duly constituted for the purpose of those proceedings so long as the number of members is not reduced to less than three.

(4) If the chairman is unable to continue, the chairman of the Tribunal shall— (a) appoint one of the remaining members to act as chairman, and (b) appoint a suitably qualified person to attend the proceedings and advise the

members on any questions of law arising.

(5) A person is “suitably qualified” for the purposes of subsection (4)(b) if he is, or is eligible for appointment as, a deputy chairman of the Tribunal.

Jurisdiction and procedure

149 Jurisdiction of the Tribunal.

[F295The Copyright Tribunal has jurisdiction under this Part] to hear and determine proceedings under—

[F296(za) section 73 (determination of royalty or other remuneration to be paid with respect to re-transmission of broadcast including work);]

[F297(zb) section 93C (application to determine amount of equitable remuneration under section 93B);]

(a) section 118, 119, or 120 (reference of licensing scheme); (b) section 121 or 122 (application with respect to entitlement to licence under

licensing scheme); (c) section 125, 126 or 127 (reference or application with respect to licensing by

licensing body); [F298(ca) section 128B (reference by the Secretary of State under section 128A);] [F299(cc) section 135D or 135E (application or reference with respect to use as of right

of sound recordings in broadcasts F300. . . );] (d) section 139 (appeal against order as to coverage of licensing scheme or

licence); (e) section 142 (application to settle royalty or other sum payable for [F301lending

of certain works];

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(f) section 144(4) (application to settle terms of copyright licence available as of right);

F302(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F295 Words in s. 149 substituted (1.12.1996) by S.I. 1996/2967, reg. 24(2)(a) (with Pt. III) F296 S. 149(za) inserted (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 3 (with s. 43(6)); S.I. 1996/2120,

art. 4(1), Sch. 1 F297 S. 149(zb) inserted (1.12.1996) by S.I. 1996/2967, reg. 14(2) (with Pt. III) F298 S. 149(ca) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(6) (with regs. 31-40) F299 S. 149(cc) inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(2) F300 Words in s. 149(cc) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F301 Words in s. 149(e) substituted (1.12.1996) by S.I. 1996/2967, reg. 13(3) (with Pt. III) F302 S. 149(g)(h) omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 24(2)(b) (with Pt. III)

Modifications etc. (not altering text) C61 S. 149 amended by Broadcasting Act 1990 (c. 42, SIF 96), s. 176, Sch. 17 para. 7(1)

150 General power to make rules.

(1) The Lord Chancellor may, after consultation with the Lord Advocate, make rules for regulating proceedings before the Copyright Tribunal and, subject to the approval of the Treasury, as to the fees chargeable in respect of such proceedings.

[F303(2) The rules may apply in relation to the Tribunal, as respects proceedings in England and Wales or Northern Ireland, any of the provisions of Part I of the Arbitration Act 1996.]

(3) Provision shall be made by the rules— (a) prohibiting the Tribunal from entertaining a reference under section 118, 119

or 120 by a representative organisation unless the Tribunal is satisfied that the organisation is reasonably representative of the class of persons which it claims to represent;

(b) specifying the parties to any proceedings and enabling the Tribunal to make a party to the proceedings any person or organisation satisfying the Tribunal that they have a substantial interest in the matter; and

(c) requiring the Tribunal to give the parties to proceedings an opportunity to state their case, in writing or orally as the rules may provide.

(4) The rules may make provision for regulating or prescribing any matters incidental to or consequential upon any appeal from the Tribunal under section 152 (appeal to the court on point of law).

(5) Rules under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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Annotations:

Amendments (Textual) F303 S. 150(2) substituted (31.1.1997) by 1996 c. 23, s. 107(1), Sch. 3 para. 50 (with s. 81(2)); S.I.

1996/3146, art. 3 (with Sch. 2)

Modifications etc. (not altering text) C62 S. 150: functions of the Lord Advocate transferred to the Secretary of State, and all property, rights

and liabilities to which the Lord Advocate is entitled or subject in connection with any such function transferred to the Secretary of State for Scotland (19.5.1999) by S.I. 1999/678, arts. 2, 3, Sch. (with art. 7) S. 150 modified (30.6.1999) by S.I. 1999/1748, art. 3, Sch. 1 para. 10

C63 S. 150(1): transfer of certain functions (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1 (with art. 7); S.I. 1998/3178, art. 3

151 Costs, proof of orders, &c.

(1) The Copyright Tribunal may order that the costs of a party to proceedings before it shall be paid by such other party as the Tribunal may direct; and the Tribunal may tax or settle the amount of the costs, or direct in what manner they are to be taxed.

(2) A document purporting to be a copy of an order of the Tribunal and to be certified by the chairman to be a true copy shall, in any proceedings, be sufficient evidence of the order unless the contrary is proved.

(3) As respect proceedings in Scotland, the Tribunal has the like powers for securing the attendance of witnesses and the production of documents, and with regard to the examination of witnesses on oath, as an arbiter under a submission.

[F304151AAward of interest.

(1) Any of the following, namely— (a) a direction under section 123(3) so far as relating to a licence for

[F305communicating a work to the public]; (b) a direction under section 128(3) so far as so relating; (c) an order under section 135D(1); and (d) an order under section 135F confirming or varying an order under

section 135D(1), may award simple interest at such rate and for such period, beginning not earlier than the relevant date and ending not later than the date of the order, as the Copyright Tribunal thinks reasonable in the circumstances.

(2) In this section “the relevant date” means— (a) in relation to a direction under section 123(3), the date on which the reference

was made; (b) in relation to a direction under section 128(3), the date on which the reference

or application was made; (c) in relation to an order section 135D(1), the date on which the first payment

under section 135C(2) became due; and (d) in relation to an order under section 135F, the date on which the application

was made.]

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Annotations:

Amendments (Textual) F304 S. 151A inserted (1.11.1996 with effect as mentioned in s. 139(3)) by 1996 c. 55, s. 139(2) (with s.

43(6)); S.I. 1996/2120, art. 5, Sch. 2 F305 Words in s. 151A(1)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I.2003/2498), reg. 2(1), Sch. 1 para. 7 (with regs. 31-40)

Appeals

152 Appeal to the court on point of law.

(1) An appeal lies on any point of law arising from a decision of the Copyright Tribunal to the High Court or, in the case of proceedings of the Tribunal in Scotland, to the Court of Session.

(2) Provision shall be made by rules under section 150 limiting the time within which an appeal may be brought.

(3) Provision may be made by rules under that section— (a) for suspending, or authorising or requiring the Tribunal to suspend, the

operation of orders of the Tribunal in cases where its decision is appealed against;

(b) for modifying in relation to an order of the Tribunal whose operation is suspended the operation of any provision of this Act as to the effect of the order;

(c) for the publication of notices or the taking of other steps for securing that persons affected by the suspension of an order of the Tribunal will be informed of its suspension.

CHAPTER IX

QUALIFICATION FOR AND EXTENT OF COPYRIGHT PROTECTION

Qualification for copyright protection

153 Qualification for copyright protection.

(1) Copyright does not subsist in a work unless the qualification requirements of this Chapter are satisfied as regards—

(a) the author (see section 154), or (b) the country in which the work was first published (see section 155), or (c) in the case of a broadcast F306. . . , the country from which the broadcast was

made . . . (see section 156).

(2) Subsection (1) does not apply in relation to Crown copyright or Parliamentary copyright (see sections 163 to [F307166D]) or to copyright subsisting by virtue of section 168 (copyright of certain international organisations).

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(3) If the qualification requirements of this Chapter, or section 163, 165 or 168, are once satisfied in respect of a work, copyright does not cease to subsist by reason of any subsequent event.

Annotations:

Amendments (Textual) F306 Words in s. 153(1)(c) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F307 Word in s. 153(2) substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para.

25 (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

Modifications etc. (not altering text) C64 Ss. 153, 154 extended by S.I. 1989/988, art. 2(1) C65 S. 153 extended (1.7.1992) by S.I. 1992/1313, art. 2 C66 Ss. 153, 154 applied (with modifications) (4.5.1993) by S.I. 1993/942, arts. 2, 3, 4, 5, Sch. 4 (with art.

6) Ss. 153-155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 5, Sch. 1, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5) Ss. 153, 154, 155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 3, 5, Sch. 1, Sch. 2, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5) Ss. 153, 154, 156 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 4(1)(2)(5), 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5)

154 Qualification by reference to author.

(1) A work qualifies for copyright protection if the author was at the material time a qualifying person, that is—

(a) a British citizen, a British Dependent Territories citizen, a British National (Overseas), a British Overseas citizen, a British subject or a British protected person within the meaning of the M14British Nationality Act 1981, or

(b) an individual domiciled or resident in the United Kingdom or another country to which the relevant provisions of this Part extend, or

(c) a body incorporated under the law of a part of the United Kingdom or of another country to which the relevant provisions of this Part extend.

(2) Where, or so far as, provision is made by Order under section 159 (application of this Part to countries to which it does not extend), a work also qualifies for copyright protection if at the material time the author was a citizen or subject of, an individual domiciled or resident in, or a body incorporated under the law of, a country to which the Order relates.

(3) A work of joint authorship qualifies for copyright protection if at the material time any of the authors satisfies the requirements of subsection (1) or (2); but where a work qualifies for copyright protection only under this section, only those authors who satisfy those requirements shall be taken into account for the purposes of—

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section 11(1) and (2) (first ownership of copyright; entitlement of author or author’s employer),

[F308section 12 (duration of copyright), and section 9(4) (meaning of “unknown authorship”) so far as it applies for the purposes of section 12, and]

section 57 (anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author).

(4) The material time in relation to a literary, dramatic, musical or artistic work is— (a) in the case of an unpublished work, when the work was made or, if the making

of the work extended over a period, a substantial part of that period; (b) in the case of a published work, when the work was first published or, if the

author had died before that time, immediately before his death.

(5) The material time in relation to other descriptions of work is as follows— (a) in the case of a sound recording or film, when it was made; (b) in the case of a broadcast, when the broadcast was made; (c) F309. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) in the case of the typographical arrangement of a published edition, when the

edition was first published.

Annotations:

Amendments (Textual) F308 Paragraph in s. 154(3) substituted (1.1.1996) by S.I. 1995/3297, reg. 5(3) (with Pt. III) F309 S. 154(5)(c) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

Modifications etc. (not altering text) C67 Ss. 153, 154 extended by S.I. 1989/988, art. 2(1) C68 S. 154 extended (1.7.1992) by S.I. 1992/1313, art. 2 C69 Ss. 153, 154 applied (with modifications) (4.5.1993) by S.I. 1993/942, arts. 2, 3, 4, 5, Sch. 4 (with art.

6) Ss. 153-155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 5, Sch. 1, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5) Ss. 153, 154, 155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 3, 5, Sch. 1, Sch. 2, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5) Ss. 153, 154, 156 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 4(1)(2)(5), 5, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5)

Marginal Citations M14 1981 c. 61.

155 Qualification by reference to country of first publication.

(1) A literary, dramatic, musical or artistic work, a sound recording or film, or the typographical arrangement of a published edition, qualifies for copyright protection if it is first published—

(a) in the United Kingdom, or (b) in another country to which the relevant provisions of this Part extend.

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(2) Where, or so far as, provision is made by Order under section 159 (application of this Part to countries to which it does not extend), such a work also qualifies for copyright protection if it is first published in a country to which the Order relates.

(3) For the purposes of this section, publication in one country shall not be regarded as other than the first publication by reason of simultaneous publication elsewhere; and for this purpose publication elsewhere within the previous 30 days shall be treated as simultaneous.

Annotations:

Modifications etc. (not altering text) C70 S. 155 extended with modifications by S.I. 1989/1293, arts. 2(1), 3, 5, 6, Schs. 1, 2, 3, 4 C71 S. 155 extended (1.7.1992) by S.I. 1992/1313, art.2 C72 S. 155 applied (with modifications) (4.5.1993) by S.I. 1993/942, arts.2, 3, 5, Sch. 4 (with art. 6)

Ss. 153-155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 5, Sch. 1, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5) Ss. 153, 154, 155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 3, 5, Sch. 1, Sch. 2, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5)

156 Qualification by reference to place of transmission.

(1) A broadcast qualifies for copyright protection if it is made from F310. . . a place in— (a) the United Kingdom, or (b) another country to which the relevant provisions of this Part extend.

(2) Where, or so far as, provision is made by Order under section 159 (application of this Part to countries to which it does not extend), a broadcast . . . also qualifies for copyright protection if it is made from . . . a place in a country to which the Order relates.

Annotations:

Amendments (Textual) F310 Words in s. 156(1)(2) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

Modifications etc. (not altering text) C73 S. 156 extended (1.7.1992) by S.I. 1992/1313, art.2 C74 S. 156 applied (with modifications) (4.5.1993) by S.I. 1993/942, art.4, 5, Sch. 4 (with art. 6)

Ss. 153, 154, 156 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 4(1)(2)(5), 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5)

Extent and application of this Part

157 Countries to which this Part extends.

(1) This Part extends to England and Wales, Scotland and Northern Ireland.

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(2) Her Majesty may by Order in Council direct that this Part shall extend, subject to such exceptions and modifications as may be specified in the Order, to—

(a) any of the Channel Islands, (b) the Isle of Man, or (c) any colony.

(3) That power includes power to extend, subject to such exceptions and modifications as may be specified in the Order, any Order in Council made under the following provisions of this Chapter.

(4) The legislature of a country to which this Part has been extended may modify or add to the provisions of this Part, in their operation as part of the law of that country, as the legislature may consider necessary to adapt the provisions to the circumstances of that country—

(a) as regards procedure and remedies, or (b) as regards works qualifying for copyright protection by virtue of a connection

with that country.

(5) Nothing in this section shall be construed as restricting the extent of paragraph 36 of Schedule 1 (transitional provisions: dependent territories where the M15Copyright Act 1956 or the M16Copyright Act 1911 remains in force) in relation to the law of a dependent territory to which this Part does not extend.

Annotations:

Modifications etc. (not altering text) C75 S. 157(2)(c) extended (8.4.2010) by Digital Economy Act 2010 (c. 24), ss. 46(4), 47(2)(c)

Marginal Citations M15 1956 c. 74. M16 1911 c. 46.

158 Countries ceasing to be colonies.

(1) The following provisions apply where a country to which this Part has been extended ceases to be a colony of the United Kingdom.

(2) As from the date on which it ceases to be a colony it shall cease to be regarded as a country to which this Part extends for the purposes of—

(a) section 160(2)(a) (denial of copyright protection to citizens of countries not giving adequate protection to British works), and

(b) sections 163 and 165 (Crown and Parliamentary copyright).

(3) But it shall continue to be treated as a country to which this Part extends for the purposes of sections 154 to 156 (qualification for copyright protection) until—

(a) an Order in Council is made in respect of that country under section 159 (application of this Part to countries to which it does not extend), or

(b) an Order in Council is made declaring that it shall cease to be so treated by reason of the fact that the provisions of this Part as part of the law of that country have been repealed or amended.

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(4) A statutory instrument containing an Order in Council under subsection (3)(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

159 Application of this Part to countries to which it does not extend.

(1) Her Majesty may by Order in Council make provision for applying in relation to a country to which this Part does not extend any of the provisions of this Part specified in the Order, so as to secure that those provisions—

(a) apply in relation to persons who are citizens or subjects of that country or are domiciled or resident there, as they apply to persons who are British citizens or are domiciled or resident in the United Kingdom, or

(b) apply in relation to bodies incorporated under the law of that country as they apply in relation to bodies incorporated under the law of a part of the United Kingdom, or

(c) apply in relation to works first published in that country as they apply in relation to works first published in the United Kingdom, or

(d) apply in relation to broadcasts made from F311. . . that country as they apply in relation to broadcasts made from . . . the United Kingdom.

(2) An Order may make provision for all or any of the matters mentioned in subsection (1) and may—

(a) apply any provisions of this Part subject to such exceptions and modifications as are specified in the Order; and

(b) direct that any provisions of this Part apply either generally or in relation to such classes of works, or other classes of case, as are specified in the Order.

(3) Except in the case of a Convention country or another member State of the [F312European Union], Her Majesty shall not make an Order in Council under this section in relation to a country unless satisfied that provision has been or will be made under the law of that country, in respect of the class of works to which the Order relates, giving adequate protection to the owners of copyright under this Part.

(4) In subsection (3) “Convention country” means a country which is a party to a Convention relating to copyright to which the United Kingdom is also a party.

(5) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Annotations:

Amendments (Textual) F311 Words in s. 159(1)(d) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F312 Words substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 4

160 Denial of copyright protection to citizens of countries not giving adequate protection to British works.

(1) If it appears to Her Majesty that the law of a country fails to give adequate protection to British works to which this section applies, or to one or more classes of such works,

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Her Majesty may make provision by Order in Council in accordance with this section restricting the rights conferred by this Part in relation to works of authors connected with that country.

(2) An Order in Council under this section shall designate the country concerned and provide that, for the purposes specified in the Order, works first published after a date specified in the Order shall not be treated as qualifying for copyright protection by virtue of such publication if at that time the authors are—

(a) citizens or subjects of that country (not domiciled or resident in the United Kingdom or another country to which the relevant provisions of this Part extend), or

(b) bodies incorporated under the law of that country; and the Order may make such provision for all the purposes of this Part or for such purposes as are specified in the Order, and either generally or in relation to such class of cases as are specified in the Order, having regard to the nature and extent of that failure referred to in subsection (1).

(3) This section applies to literary, dramatic, musical and artistic works, sound recordings and films; and “British works” means works of which the author was a qualifying person at the material time within the meaning of section 154.

(4) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Supplementary

161 Territorial waters and the continental shelf.

(1) For the purposes of this Part the territorial waters of the United Kingdom shall be treated as part of the United Kingdom.

(2) This Part applies to things done in the United Kingdom sector of the continental shelf on a structure or vessel which is present there for purposes directly connected with the exploration of the sea bed or subsoil or the exploitation of their natural resources as it applies to things done in the United Kingdom.

(3) The United Kingdom sector of the continental shelf means the areas designated by order under section 1(7) of the M17Continental Shelf Act 1964.

Annotations:

Modifications etc. (not altering text) C76 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Marginal Citations M17 1964 c. 29.

162 British ships, aircraft and hovercraft.

(1) This Part applies to things done on a British ship, aircraft or hovercraft as it applies to things done in the United Kingdom.

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(2) In this section— “British ship” means a ship which is a British ship for the purposes of the

[F313Merchant Shipping Act 1995] otherwise than by virtue of registration in a country outside the United Kingdom; and

“British aircraft” and “British hovercraft” mean an aircraft or hovercraft registered in the United Kingdom.

Annotations:

Amendments (Textual) F313 Words in s. 162(2) substituted (1.1.1996) by 1995 c. 21, ss. 314(2), 316(2), Sch. 13 para. 84(a) (with

s. 312(1))

Modifications etc. (not altering text) C77 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

CHAPTER X

MISCELLANEOUS AND GENERAL

Crown and Parliamentary copyright

163 Crown copyright.

(1) Where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties—

(a) the work qualifies for copyright protection notwithstanding section 153(1) (ordinary requirement as to qualification for copyright protection), and

(b) Her Majesty is the first owner of any copyright in the work.

(1A) F314. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Copyright in such a work is referred to in this Part as “Crown copyright”, notwithstanding that it may be, or have been, assigned to another person.

(3) Crown copyright in a literary, dramatic, musical or artistic work continues to subsist— (a) until the end of the period of 125 years from the end of the calendar year in

which the work was made, or (b) if the work is published commercially before the end of the period of 75 years

from the end of the calendar year in which it was made, until the end of the period of 50 years from the end of the calendar year in which it was first so published.

(4) In the case of a work of joint authorship where one or more but not all of the authors are persons falling within subsection (1), this section applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.

(5) Except as mentioned above, and subject to any express exclusion elsewhere in this Part, the provisions of this Part apply in relation to Crown copyright as to other copyright.

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(6) This section does not apply to a work if, or to the extent that, Parliamentary copyright subsists in the work (see sections 165 [F315to [F316166D]]).

Annotations:

Amendments (Textual) F314 S. 163(1A) repealed by Government of Wales Act 2006 (c. 32), ss. 160(1), 163, Sch. 10 para. 26(2),

Sch. 12 (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F315 Words in s. 163(6) substituted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(4); S.I. 1998/3178, art. 2(2), Sch. 3

F316 Word in s. 163(6) substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 26(3) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

164 Copyright in Acts and Measures.

(1) Her Majesty is entitled to copyright in every Act of Parliament [F317Act of the Scottish Parliament][F318, [F319Measure of the National Assembly for Wales, Act of the National Assembly for Wales,] Act of the Northern Ireland Assembly] or Measure of the General Synod of the Church of England.

(2) The copyright subsists [F320(a) in the case of an Act or a Measure of the General Synod of the Church of

England, until the end of the period of 50 years from the end of the calendar year in which Royal Assent was given, and

(b) in the case of a Measure of the National Assembly for Wales, until the end of the period of 50 years from the end of the calendar year in which the Measure was approved by Her Majesty in Council.]

(3) References in this Part to Crown copyright (except in section 163) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Crown copyright.

(4) No other copyright, or right in the nature of copyright, subsists in an Act or Measure.

Annotations:

Amendments (Textual) F317 Words in s. 164(1) inserted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(5); S.I. 1998/3178, art.

2(2), Sch. 3 F318 Words in s. 164(1) inserted (2.12.1999) by 1998 c. 47, s. 99, Sch. 13 para. 8(5) (with s. 95); S.I.

1999/3209, art. 2, Sch. F319 Words in s. 164(1) inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para.

27(2) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for

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certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F320 S. 164(2)(a)(b) substituted for words in s. 164(2) by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 27(3) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

165 Parliamentary copyright.

(1) Where a work is made by or under the direction or control of the House of Commons or the House of Lords—

(a) the work qualifies for copyright protection notwithstanding section 153(1) (ordinary requirement as to qualification for copyright protection), and

(b) the House by whom, or under whose direction or control, the work is made is the first owner of any copyright in the work, and if the work is made by or under the direction or control of both Houses, the two Houses are joint first owners of copyright.

(2) Copyright in such a work is referred to in this Part as “Parliamentary copyright”, notwithstanding that it may be, or have been, assigned to another person.

(3) Parliamentary copyright in a literary, dramatic, musical or artistic work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the work was made.

(4) For the purposes of this section, works made by or under the direction or control of the House of Commons or the House of Lords include—

(a) any work made by an officer or employee of that House in the course of his duties, and

(b) any sound recording, film [F321or live broadcast] of the proceedings of that House;

but a work shall not be regarded as made by or under the direction or control of either House by reason only of its being commissioned by or on behalf of that House.

(5) In the case of a work of joint authorship where one or more but not all of the authors are acting on behalf of, or under the direction or control of, the House of Commons or the House of Lords, this section applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.

(6) Except as mentioned above, and subject to any express exclusion elsewhere in this Part, the provisions of this Part apply in relation to Parliamentary copyright as to other copyright.

(7) The provisions of this section also apply, subject to any exceptions or modifications specified by Order in Council, to works made by or under the direction or control of any other legislative body of a country to which this Part extends; and references in this Part to “Parliamentary copyright” shall be construed accordingly.

(8) A statutory instrument containing an Order in Council under subsection (7) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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Annotations:

Amendments (Textual) F321 Words in s. 165(4)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 11(b) (with regs. 31-40)

Modifications etc. (not altering text) C78 S. 165 modified (6.5.1999) by S.I. 1999/676, art. 2

S. 165 modified (2.12.1999) by S.I. 1999/3146, arts. 1(1), 2; S.I. 1999/3208, art. 2 C79 S. 165 modified (3.5.2007 in accordance with art. 1(2) of the amending S.I.) by The Parliamentary

166 Copyright in Parliamentary Bills.

(1) Copyright in every Bill introduced into Parliament belongs, in accordance with the following provisions, to one or both of the Houses of Parliament.

(2) Copyright in a public Bill belongs in the first instance to the House into which the Bill is introduced, and after the Bill has been carried to the second House to both Houses jointly, and subsists from the time when the text of the Bill is handed in to the House in which it is introduced.

(3) Copyright in a private Bill belongs to both Houses jointly and subsists from the time when a copy of the Bill is first deposited in either House.

(4) Copyright in a personal Bill belongs in the first instance to the House of Lords, and after the Bill has been carried to the House of Commons to both Houses jointly, and subsists from the time when it is given a First Reading in the House of Lords.

(5) Copyright under this section ceases— (a) on Royal Assent, or (b) if the Bill does not receive Royal Assent, on the withdrawal or rejection of

the Bill or the end of the Session:

Provided that, copyright in a Bill continues to subsist notwithstanding its rejection in any Session by the House of Lords if, by virtue of the Parliament Acts 1911 and 1949, it remains possible for it to be presented for Royal Assent in that Session.

(6) References in this Part to Parliamentary copyright (except in section 165) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Parliamentary copyright.

(7) No other copyright, or right in the nature of copyright, subsists in a Bill after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a Bill which, not having passed in one Session, is reintroduced in a subsequent Session.

[F322166ACopyright in Bills of the Scottish Parliament.

(1) Copyright in every Bill introduced into the Scottish Parliament belongs to the Scottish Parliamentary Corporate Body.

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(2) Copyright under this section subsists from the time when the text of the Bill is handed in to the Parliament for introduction—

(a) until the Bill receives Royal Assent, or (b) if the Bill does not receive Royal Assent, until it is withdrawn or rejected or

no further parliamentary proceedings may be taken in respect of it.

(3) References in this Part to Parliamentary copyright (except in section 165) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Parliamentary copyright.

(4) No other copyright, or right in the nature of copyright, subsists in a Bill after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a Bill which, not having received Royal Assent, is later reintroduced into the Parliament.]

Annotations:

Amendments (Textual) F322 S. 166A inserted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(6); S.I. 1998/3178, art. 2(2), Sch.

[F323166BCopyright in Bills of the Northern Ireland Assembly.

(1) Copyright in every Bill introduced into the Northern Ireland Assembly belongs to the Northern Ireland Assembly Commission.

(2) Copyright under this section subsists from the time when the text of the Bill is handed in to the Assembly for introduction—

(a) until the Bill receives Royal Assent, or (b) if the Bill does not receive Royal Assent, until it is withdrawn or rejected or

no further proceedings of the Assembly may be taken in respect of it.

Annotations:

Amendments (Textual) F323 S. 166B inserted (2.12.1999) by 1998 c. 47, s. 99, Sch. 13 para. 8(6) (with s. 95); S.I. 1999/3209, art.

2, Sch.

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[F324166CCopyright in proposed Measures of the National Assembly for Wales

(1) Copyright in every proposed Assembly Measure introduced into the National Assembly for Wales belongs to the National Assembly for Wales Commission.

(2) Copyright under this section subsists from the time when the text of the proposed Assembly Measure is handed in to the Assembly for introduction—

(a) until the proposed Assembly Measure is approved by Her Majesty in Council, or

(b) if the proposed Assembly Measure is not approved by Her Majesty in Council, until it is withdrawn or rejected or no further proceedings of the Assembly may be taken in respect of it.

(4) No other copyright, or right in the nature of copyright, subsists in a proposed Assembly Measure after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a proposed Assembly Measure which, not having been approved by Her Majesty in Council, is later reintroduced into the Assembly.

Annotations:

Amendments (Textual) F324 Ss. 166C, 166D inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 28

166D Copyright in Bills of the National Assembly for Wales

(1) Copyright in every Bill introduced into the National Assembly for Wales belongs to the National Assembly for Wales Commission.

(2) Copyright under this section subsists from the time when the text of the Bill is handed in to the Assembly for introduction—

(a) until the Bill receives Royal Assent, or (b) if the Bill does not receive Royal Assent, until it is withdrawn or rejected or

no further proceedings of the Assembly may be taken in respect of it.

(4) No other copyright, or right in the nature of copyright, subsists in a Bill after copyright has once subsisted under this section; but without prejudice to the subsequent

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operation of this section in relation to a Bill which, not having received Royal Assent, is later reintroduced into the Assembly.]

167 Houses of Parliament: supplementary provisions with respect to copyright.

(1) For the purposes of holding, dealing with and enforcing copyright, and in connection with all legal proceedings relating to copyright, each House of Parliament shall be treated as having the legal capacities of a body corporate, which shall not be affected by a prorogation or dissolution.

(2) The functions of the House of Commons as owner of copyright shall be exercised by the Speaker on behalf of the House; and if so authorised by the Speaker, or in case of a vacancy in the office of Speaker, those functions may be discharged by the Chairman of Ways and Means or a Deputy Chairman.

(3) For this purpose a person who on the dissolution of Parliament was Speaker of the House of Commons, Chairman of Ways and Means or a Deputy Chairman may continue to act until the corresponding appointment is made in the next Session of Parliament.

(4) The functions of the House of Lords as owner of copyright shall be exercised by the Clerk of the Parliaments on behalf of the House; and if so authorised by him, or in case of a vacancy in the office of Clerk of the Parliaments, those functions may be discharged by the Clerk Assistant or the Reading Clerk.

(5) Legal proceedings relating to copyright— (a) shall be brought by or against the House of Commons in the name of “The

Speaker of the House of Commons”; and (b) shall be brought by or against the House of Lords in the name of “The Clerk

of the Parliaments”.

Other miscellaneous provisions

168 Copyright vesting in certain international organisations.

(1) Where an original literary, dramatic, musical or artistic work— (a) is made by an officer or employee of, or is published by, an international

organisation to which this section applies, and (b) does not qualify for copyright protection under section 154 (qualification by

reference to author) or section 155 (qualification by reference to country of first publication),

copyright nevertheless subsists in the work by virtue of this section and the organisation is first owner of that copyright.

(2) The international organisations to which this section applies are those as to which Her Majesty has by Order in Council declared that it is expedient that this section should apply.

(3) Copyright of which an international organisation is first owner by virtue of this section continues to subsist until the end of the period of 50 years from the end of the calendar year in which the work was made or such longer period as may be specified by Her Majesty by Order in Council for the purpose of complying with the international obligations of the United Kingdom.

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(4) An international organisation to which this section applies shall be deemed to have, and to have had at all material times, the legal capacities of a body corporate for the purpose of holding, dealing with and enforcing copyright and in connection with all legal proceedings relating to copyright.

(5) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

169 Folklore, &c.: anonymous unpublished works.

(1) Where in the case of an unpublished literary, dramatic, musical or artistic work of unknown authorship there is evidence that the author (or, in the case of a joint work, any of the authors) was a qualifying individual by connection with a country outside the United Kingdom, it shall be presumed until the contrary is proved that he was such a qualifying individual and that copyright accordingly subsists in the work, subject to the provisions of this Part.

(2) If under the law of that country a body is appointed to protect and enforce copyright in such works, Her Majesty may by Order in Council designate that body for the purposes of this section.

(3) A body so designated shall be recognised in the United Kingdom as having authority to do in place of the copyright owner anything, other than assign copyright, which it is empowered to do under the law of that country; and it may, in particular, bring proceedings in its own name.

(4) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) In subsection (1) a “qualifying individual” means an individual who at the material time (within the meaning of section 154) was a person whose works qualified under that section for copyright protection.

(6) This section does not apply if there has been an assignment of copyright in the work by the author of which notice has been given to the designated body; and nothing in this section affects the validity of an assignment of copyright made, or licence granted, by the author or a person lawfully claiming under him.

Transitional provisions and savings

170 Transitional provisions and savings.

Schedule 1 contains transitional provisions and savings relating to works made, and acts or events occurring, before the commencement of this Part, and otherwise with respect to the operation of the provisions of this Part.

171 Rights and privileges under other enactments or the common law.

(1) Nothing in this Part affects— (a) any right or privilege of any person under any enactment (except where the

enactment is expressly repealed, amended or modified by this Act); (b) any right or privilege of the Crown subsisting otherwise than under an

enactment;

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(c) any right or privilege of either House of Parliament; (d) the right of the Crown or any person deriving title from the Crown to sell,

use or otherwise deal with articles forfeited under the laws relating to customs and excise;

(e) the operation of any rule of equity relating to breaches of trust or confidence.

(2) Subject to those savings, no copyright or right in the nature of copyright shall subsist otherwise than by virtue of this Part or some other enactment in that behalf.

(3) Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise.

(4) Nothing in this Part affects any right of action or other remedy, whether civil or criminal, available otherwise than under this Part in respect of acts infringing any of the rights conferred by Chapter IV (moral rights).

(5) The savings in subsection (1) have effect subject to section 164(4) and section 166(7) (copyright in Acts, Measures and Bills: exclusion of other rights in the nature of copyright).

Annotations:

Modifications etc. (not altering text) C80 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Interpretation

172 General provisions as to construction.

(1) This Part restates and amends the law of copyright, that is, the provisions of the M18Copyright Act 1956, as amended.

(2) A provision of this Part which corresponds to a provision of the previous law shall not be construed as departing from the previous law merely because of a change of expression.

(3) Decisions under the previous law may be referred to for the purpose of establishing whether a provision of this Part departs from the previous law, or otherwise for establishing the true construction of this Part.

Annotations:

Modifications etc. (not altering text) C81 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Marginal Citations M18 1956 c. 74.

[F325172AMeaning of EEA and related expressions.

[F327(1) In this Part— “the EEA” means the European Economic Area; and

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“EEA state” means a member State, Iceland, Liechtenstein or Norway.]]

(2) References in this Part to a person being [F328a national of an EEA State] shall be construed in relation to a body corporate as references to its being incoporated under the law of an EEA state.

(3) F329. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Annotations:

Amendments (Textual) F325 S. 172A inserted (1.1.1996) by S.I. 1995/3297, reg. 11(1) (with Pt. III) F326 S. 172A(1) and sidenote substituted (1.12.1996) by S.I. 1996/2967, reg. 9(5) (with Pt. III) F327 S. 172A(1) substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations 2006

(S.I. 2006/1028), reg. 2(2), Sch. 2 para. 8(2) F328 Words in s. 172A(2) substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.)

Regulations 2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 8(3) F329 S. 172A(3) repealed (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations 2006

(S.I. 2006/1028), reg. 2(4), Sch. 4

Modifications etc. (not altering text) C82 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

173 Construction of references to copyright owner.

(1) Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of copyright in a work, the copyright owner for any purpose of this Part is the person who is entitled to the aspect of copyright relevant for that purpose.

(2) Where copyright (or any aspect of copyright) is owned by more than one person jointly, references in this Part to the copyright owner are to all the owners, so that, in particular, any requirement of the licence of the copyright owner requires the licence of all of them.

Annotations:

Modifications etc. (not altering text) C83 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

174 Meaning of “educational establishment” and related expressions.

(1) The expression “educational establishment” in a provision of this Part means— (a) any school, and (b) any other description of educational establishment specified for the purposes

of this Part, or that provision, by order of the Secretary of State.

(2) The Secretary of State may by order provide that the provisions of this Part relating to educational establishments shall apply, with such modifications and adaptations as may be specified in the order, in relation to teachers who are employed by a [F330local authority (as defined in section 579(1) of the Education Act 1996) or (in Northern

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Ireland) a local education authority,] to give instruction elsewhere to pupils who are unable to attend an educational establishment.

(3) In subsection (1)(a) “school”— (a) in relation to England and Wales, has the same meaning as in [F331the

Education Act 1996]; (b) in relation to Scotland, has the same meaning as in the M19Education (Scotland)

Act 1962, except that it includes an approved school within the meaning of the M20Social Work (Scotland) Act 1968; and

(c) in relation to Northern Ireland, has the same meaning as in the M21Education and Libraries (Northern Ireland) Order 1986.

(4) An order under subsection (1)(b) may specify a description of educational establishment by reference to the instruments from time to time in force under any enactment specified in the order.

(5) In relation to an educational establishment the expressions “teacher” and “pupil” in this Part include, respectively, any person who gives and any person who receives instruction.

(6) References in this Part to anything being done “on behalf of” an educational establishment are to its being done for the purposes of that establishment by any person.

(7) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Annotations:

Amendments (Textual) F330 Words in s. 174(2) substituted (5.5.2010) by The Local Education Authorities and Children's Services

Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), arts. 1, 5(1), Sch. 2 para. 36 F331 Words in s. 174(3) substituted (1.11.1996) by 1996 c. 56, ss. 582(1), 583(2), Sch. 37 Pt. I para. 83

(with Sch. 39)

Modifications etc. (not altering text) C84 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Marginal Citations M19 1962 c. 47. M20 1968 c. 49. M21 S.I. 1986/594 (N.I.3).

175 Meaning of publication and commercial publication.

(1) In this Part “publication”, in relation to a work— (a) means the issue of copies to the public, and (b) includes, in the case of a literary, dramatic, musical or artistic work, making

it available to the public by means of an electronic retrieval system; and related expressions shall be construed accordingly.

(2) In this Part “commercial publication”, in relation to a literary, dramatic, musical or artistic work means—

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(a) issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public, or

(b) making the work available to the public by means of an electronic retrieval system;

and related expressions shall be construed accordingly.

(3) In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to publication of the work.

(4) The following do not constitute publication for the purposes of this Part and references to commercial publication shall be construed accordingly—

(a) in the case of a literary, dramatic or musical work— (i) the performance of the work, or

(ii) the [F332communication to the public of the work] (otherwise than for the purposes of an electronic retrieval system);

(b) in the case of an artistic work— (i) the exhibition of the work,

(ii) the issue to the public of copies of a graphic work representing, or of photographs of, a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship,

(iii) the issue to the public of copies of a film including the work, or (iv) the [F332communication to the public of the work] (otherwise than for

the purposes of an electronic retrieval system); (c) in the case of a sound recording or film—

(i) the work being played or shown in public, or (ii) the [F332communication to the public of the work].

(5) References in this Part to publication or commercial publication do not include publication which is merely colourable and not intended to satisfy the reasonable requirements of the public.

(6) No account shall be taken for the purposes of this section of any unauthorised act.

Annotations:

Amendments (Textual) F332 Words in s. 175(4)(a)(ii)(b)(iv)(c)(ii) substituted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 6(1) (with regs. 31-40)

Modifications etc. (not altering text) C85 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

176 Requirement of signature: application in relation to body corporate.

(1) The requirement in the following provisions that an instrument be signed by or on behalf of a person is also satisfied in the case of a body corporate by the affixing of its seal—

section 78(3)(b) (assertion by licensor of right to identification of author in case of public exhibition of copy made in pursuance of the licence),

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section 90(3) (assignment of copyright), section 91(1) (assignment of future copyright), section 92(1) (grant of exclusive licence).

(2) The requirement in the following provisions that an instrument be signed by a person is satisfied in the case of a body corporate by signature on behalf of the body or by the affixing of its seal—

section 78(2)(b) (assertion by instrument in writing of right to have author identified), section 87(2) (waiver of moral rights).

Annotations:

Modifications etc. (not altering text) C86 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

177 Adaptation of expressions for Scotland.

In the application of this Part to Scotland— “account of profits” means accounting and payment of profits; “accounts” means count, reckoning and payment; “assignment” means assignation; “costs” means expenses; “defendant” means defender; “delivery up” means delivery; “estoppel” means personal bar; “injunction” means interdict; “interlocutory relief” means interim remedy; and “plaintiff” means pursuer.

Annotations:

Modifications etc. (not altering text) C87 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

178 Minor definitions.

In this Part— “article”, in the context of an article in a periodical, includes an item of any description; “business”includes a trade or profession; “collective work” means—

(a) a work of joint authorship, or (b) a work in which there are distinct contributions by different authors or in

which works or parts of works of different authors are incorporated; “computer-generated”, in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work;

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“country” includes any territory; “the Crown” includes the Crown in right of [F333the Scottish Administration [F334, of the Welsh Assembly Government] or of] Her Majesty’s Government in Northern Ireland or in any country outside the United Kingdom to which this Part extends; “electronic” means actuated by electric, magnetic, electro-mechanical energy, and “in electronic form” means in a form usable only by electronic means; “employed”, “employee”, “employer”, and “employment” refer to employment under a contract of service or of apprenticeship; “facsimile copy” includes a copy which is reduced or enlarged in scale; “international organisation” means an organisation the members of which include one or more states; “judicial proceedings”includes proceedings before any court, tribunal or person having authority to decide any matter affecting a person’s legal rights or liabilities; “parliamentary proceedings” includes proceedings of the Northern Ireland Assembly [F335of the Scottish Parliament][F336, of the New Northern Ireland Assembly] or of the European Parliament [F337and Assembly proceedings within the meaning of section 1(5) of the Government of Wales Act 2006]; [F338“private study” does not include any study which is directly or indirectly for a commercial purpose;] [F339“producer”, in relation to a sound recording or a film, means the person by whom the arrangements necessary for the making of the sound recording or film are undertaken;] [F340“public library” means a library administered by or on behalf of—

(a) in England and Wales, a library authority within the meaning of the Public Libraries and Museums Act 1964;

(b) in Scotland, a statutory library authority within the meaning of the Public Libraries (Scotland) Act 1955;

(c) in Northern Ireland, an Education and Library Board within the meaning of the Education and Libraries (Northern Ireland) Order 1986;]

F341. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [F342“rental right” means the right of a copyright owner to authorise or prohibit the rental of copies of the work (see section 18A);] “reprographic copy” and “reprographic copying” refer to copying by means of a reprographic process; “reprographic process” means a process—

(a) for making facsimile copies, or (b) involving the use of an appliance for making multiple copies,

and includes, in relation to a work held in electronic form, any copying by electronic means, but does not include the making of a film or sound recording; “sufficient acknowledgement” means an acknowledgement identifying the work in question by its title or other description, and identifying the author unless—

(a) in the case of a published work, it is published anonymously; (b) in the case of an unpublished work, it is not possible for a person to

ascertain the identity of the author by reasonable inquiry; “sufficient disclaimer”, in relation to an act capable of infringing the right conferred by section 80 (right to object to derogatory treatment of work), means a clear and reasonably prominent indication—

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(a) given at the time of the act, and (b) if the author or director is then identified, appearing along with the

identification,

that the work has been subjected to treatment to which the author or director has not consented, “telecommunications system” means a system for conveying visual images, sounds or other information by electronic means; “typeface” includes an ornamental motif used in printing; “unauthorised”, as regards anything done in relation to a work, means done otherwise than—

(a) by or with the licence of the copyright owner, or (b) if copyright does not subsist in the work, by or with the licence of the

author or, in a case where section 11(2) would have applied, the author’s employer or, in either case, persons lawfully claiming under him, or

(c) in pursuance of section 48 (copying, &c of certain material by the Crown); [F343“wireless broadcast” means a broadcast by means of wireless telegraphy;] “wireless telegraphy” means the sending of electro-magnetic energy over paths not provided by a material substance constructed or arranged for that purpose [F344, but does not include the transmission of microwave energy between terrestrial fixed points]; “writing” includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and “written” shall be construed accordingly

Annotations:

Amendments (Textual) F333 Words in s. 178 inserted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(7)(a); S.I. 1998/3178, art.

2(2), Sch. 3 F334 S. 178: words in definition of "the Crown" inserted by Government of Wales Act 2006 (c. 32), s.

160(1), Sch. 10 para. 29(2) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F335 Words in s. 178 inserted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(7)(b); S.I. 1998/3178, art. 2(2), Sch. 3

F336 Words in s. 178 cease to have effect (2.12.1999) by virtue of 1998 c. 47, s. 99, Sch. 13 para. 8(7) (with s. 95); S.I. 1999/3209, art. 2, Sch.

F337 S. 178: words in definition of "parliamentary proceedings" inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 29(3) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F338 S. 178: definition of "private study" inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(3) (with regs. 31-40)

F339 Definition in s. 178 inserted (1.12.1996 with effect in relation to films made on or after 31.7.1994) by S.I. 1996/2967, regs. 18(5), 36 (with Pt. III)

F340 Definition in s. 178 inserted (1.12.1996) by S.I. 1996/2967, reg. 11(5) (with Pt. III)

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F341 Definition in s. 178 omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 10(3) (with Pt. III) F342 Definition in s. 178 inserted (1.12.1996) by S.I. 1996/2967, reg. 10(3) (with Pt. III) F343 S. 178: definition of "wireless broadcast" inserted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(3) (with regs. 31-40) F344 Words in s. 178 inserted (1.12.1996) by S.I. 1996/2967, reg. 8 (with Pt. III)

Modifications etc. (not altering text) C88 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

179 Index of defined expressions.

The following Table shows provisions defining or otherwise explaining expressions used in this Part (other than provisions defining or explaining an expression used only in the same section)—

[F345accessible copy section 31F(3)] account of profits and accounts (in Scotland)

section 177

acts restricted by copyright section 16(1) adaptation section 21(3) [F345approved body section 31B(12)] archivist (in sections 37 to 43) section 37(6) article (in a periodical) section 178 artistic work section 4(1) assignment (in Scotland) section 177 author sections 9 and 10(3) broadcast (and related expressions) section 6 building section 4(2) business section 178 F346

. . . F347

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . collective work section 178 commencement (in Schedule 1) paragraph 1(2) of that Schedule commercial publication section 175 [F348communication to the public section 20] computer-generated section 178 copy and copying section 17 copyright (generally) section 1 copyright (in Schedule 1) paragraph 2(2) of that Schedule copyright owner sections 101(2) and 173

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Copyright Tribunal section 145 copyright work section 1(2) costs (in Scotland) section 177 country section 178 [F349country of origin] [F349section 15A.] the Crown section 178 Crown copyright sections 163(2) and 164(3) [F350database] [F350section 3A(1)] defendant (in Scotland) section 177 delivery up (in Scotland) section 177 dramatic work section 3(1) educational establishment sections 174(1) to (4) electronic and electronic form section 178 employed, employee, employer and employment

section 178

[F351excepted sound recording section 72(1A)] exclusive licence section 92(1) [F352the EEA, EEA state and national of an EEA state]

[F353section 172A]

existing works (in Schedule 1) paragraph 1(3) of that Schedule facsimile copy section 178 film [F354section 5B] future copyright section 91(2) general licence (in sections 140 and 141) section 140(7) graphic work section 4(2) infringing copy section 27 injunction (in Scotland) section 177 interlocutory relief (in Scotland) section 177 international organisation section 178 issue of copies to the public [F355section 18] joint authorship (work of) sections 10(1) and (2) judicial proceedings section 178 [F356lawful user (in sections 50A to 50C)] [F356section 50A(2).] [F357lending] [F357section 18A(2) to (6)] librarian (in sections 37 to 43) section 37(6) licence (in sections 125 to 128) section 124

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licence of copyright owner sections 90(4), 91(3) and 173 licensing body (in Chapter VII) section 116(2) licensing scheme (generally) section 116(1) licensing scheme (in sections 118 to 121) section 117 literary work section 3(1) made (in relation to a literary, dramatic or musical work)

section 3(2)

musical work section 3(1) [F358needletime] [F358section 135A] the new copyright provisions (in Schedule 1)

paragraph 1(1) of that Schedule

the 1911 Act (in Schedule 1) paragraph 1(1) of that Schedule the 1956 Act (in Schedule 1) paragraph 1(1) of that Schedule on behalf of (in relation to an educational establishment)

section 174(5)

[F350original (in relation to a database)] [F350section 3A(2)] Parliamentary copyright sections 165(2) and (7) [F359166(6)

[F360166A(3) [F361166B(3) 166C(3) and 166D(3)]]]

parliamentary proceedings section 178 performance section 19(2) photograph section 4(2) plaintiff (in Scotland) section 177 prescribed conditions (in sections 38 to 43)

section 37(1)(b)

prescribed library or archive (in sections 38 to 43)

section 37(1)(a)

[F362private study section 178] [F363producer (in relation to a sound recording or film]

[F363section 178.]

programme (in the context of broadcasting)

section 6(3)

prospective owner (of copyright) section 91(2) [F364public library] [F364section 178.] publication and related expressions section 175 published edition (in the context of copyright in the typographical arrangement)

section 8

pupil section 174(5)

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rental [F365section 18A(2) to (6)] [F357rental right] [F357section 178.] reprographic copies and repographic copying

section 178

reprographic process section 178 sculpture section 4(2) signed section 176 sound recording [F366sections 5A and 135A] sufficient acknowledgement section 178 sufficient disclaimer section 178 teacher section 174(5) telecommunications system section 178 [F358terms of payment] [F358section 135A] typeface section 178 unauthorised (as regards things done in relation to a work)

section 178

unknown (in relation to the author of a work)

section 9(5)

unknown authorship (work of) section 9(4) [F345visually impaired person section 31F(9)] [F367wireless broadcast section 178] wireless telegraphy section 178 work (in Schedule 1) paragraph 2(1) of that Schedule work of more than one author (in Chapter VII)

section 116(4)

writing and written section 178

Annotations:

Amendments (Textual) F345 Words in s. 179 inserted (31.10.2003) by 2002 c. 33, ss. 7(2), 8(2); S.I. 2003/2499, art. 2 F346 S. 179: entry for "cable programme, cable programme service (and related expressions)" repealed

(31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

F347 Words in s. 179 repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 32, 33)

F348 Words in s. 179 inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(4) (with regs. 31-40)

F349 Words in s. 179 inserted (1.1.1996) by S.I. 1995/3297, reg. 8(2) (with Pt. III) F350 Words in s. 179 inserted (1.1.1998) by S.I. 1997/3032, reg. 11 (with Pt. IV) F351 Words in s. 179 inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(7) (with regs. 31-40)

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F352 Words in s. 179 substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations 2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 9

F353 Words in s. 179 inserted (1.1.1996) by S.I. 1995/3297, reg. 11(2) (with Pt. III) F354 Words in s. 179 substituted (1.1.1996) by S.I. 1995/3297, reg. 9(5)(a) (with Pt. III) F355 Words in s. 179 inserted (1.12.1996) by S.I. 1996/2967, reg. 9(6)(b) (with Pt. III) F356 Words in s. 179 inserted (1.1.1993) by S.I. 1992/3233, reg. 9 F357 Words in s. 179 inserted (1.12.1996) by S.I. 1996/2967, reg. 10(4) (with Pt. III) F358 Words inserted by Broadcasting Act 1990 (c.42, SIF 96), s. 175(3) F359 Words in s. 179 substituted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(8); S.I. 1998/3178, art.

2(2), Sch. 3 F360 Words in s. 179 substituted (2.12.1999) by 1998 c. 47, s. 99, Sch. 13 para. 8(8) (with s. 95); S.I.

1999/3209, art. 2, Sch. F361 Words in s. 179 substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para.

30 (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F362 Words in s. 179 inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(4) (with regs. 31-40)

F363 Words in s. 179 inserted (1.12.1996 with effect in relation to films made on or after 1.7.1994) by S.I. 1996/2967, regs. 18(6), 36 (with Pt. III)

F364 Words in s. 179 inserted (1.12.1996) by S.I. 1996/2967, reg. 11(6) (with Pt. III) F365 Words in s. 179 substituted (1.12.1996) by S.I. 1996/2967, reg. 10(4) (with Pt. III) F366 Words in s. 179 substituted (1.1.1996) by S.I. 1995/3297, reg. 9(5)(b) (with Pt. III) F367 Words in s. 179 inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 15(4) (with regs. 31-40)

Modifications etc. (not altering text) C89 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

PART II

RIGHTS IN PERFORMANCES

Annotations:

Modifications etc. (not altering text) C90 Pt. 2 (ss. 180-212) restricted (22.4.2003) by The Performances (Reciprocal Protection) (Convention

Countries and Isle of Man) Order 2003 (S.I. 2003/773), art. 3 (which S.I. was revoked (1.5.2005) by S.I. 2005/852, art. 8(c))

C91 Pt. 2 (ss. 180-212) extended (with modifications) (1.5.2005) by The Copyright and Performances (Application to Other Countries) Order 2005 (S.I. 2005/852), art. 6, Sch. (with art. 7) (which S.I. was revoked (6.4.2006) by S.I. 2006/316, art. 1(3))

C92 Pt. 2 (ss. 180-212) extended (with modifications) (6.4.2006) by The Copyright and Performances (Application to Other Countries) Order 2006 (S.I. 2006/316), art. 6, Sch. (with art. 7) (which S.I. was revoked (6.4.2007) by S.I. 2007/273, art. 1(3))

C93 Pt. 2 (ss. 180-212) extended (with modifications) (6.4.2007) by The Copyright and Performances (Application to Other Countries) Order 2007 (S.I. 2007/273), art. 6, Sch. (with art. 7) (which S.I. was revoked (6.4.2008) by S.I. 2008/677, art. 1(3))

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C94 Pt. 2 (ss. 180-212) extended (with modifications) (6.4.2008) by The Copyright and Performances (Application to Other Countries) Order 2008 (S.I. 2008/677), art. 6, Sch. (with art. 7)

[F368CHAPTER 1

INTRODUCTORY

Annotations:

Amendments (Textual) F368 Cross-headings before ss. 180, 181 omitted (1.2.2006) and ss. 180, 181 become Pt. 2 Ch. 1 by virtue of

The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 4(1)-(3) (with reg. 8)

X1180 Rights conferred on performers and persons having recording rights.

(1) [F369Chapter 2 of this Part (economic rights)] confers rights— (a) on a performer, by requiring his consent to the exploitation of his

performances (see sections 181 to 184), and (b) on a person having recording rights in relation to a performance, in relation

to recordings made without his consent or that of the performer (see sections 185 to 188),

and creates offences in relation to dealing with or using illicit recordings and certain other related acts (see sections 198 and 201).

[F370(1A) Rights are also conferred on a performer by the following provisions of Chapter 3 of this Part (moral rights)—

(a) section 205C (right to be identified); (b) section 205F (right to object to derogatory treatment of performance).]

(2) In this Part — “performance” means — (a) a dramatic performance (which includes dance and mime), (b) a musical performance, (c) a reading or recitation of a literary work, or (d) a performance of a variety act or any similar presentation,

which is, or so far as it is, a live performance given by one or more individuals; and “recording”, in relation to a performance, means a film or sound recording—

(a) made directly from the live performance, (b) made from a broadcast of F371. . . the performance, or (c) made, directly or indirectly, from another recording of the performance.

(3) The rights conferred by this Part apply in relation to performances taking place before the commencement of this Part; but no act done before commencement, or in pursuance of arrangements made before commencement, shall be regarded as infringing those rights.

(4) The rights conferred by this Part are independent of— (a) any copyright in, or moral rights relating to, any work performed or any film

or sound recording of, or broadcast F372. . . the performance, and (b) any other right or obligation arising otherwise than under this Part.

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155

Annotations:

Editorial Information X1 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Amendments (Textual) F369 Words in s. 180(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 5(1) (with reg. 8) F370 S. 180(1A) inserted 1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 5(2) (with reg. 8) F371 Words in s. 180(1)(4)(a) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F372 Words in s. 180(1)(4)(a) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 32, 33)

X2181 Qualifying performances.

A performance is a qualifying performance for the purposes of the provisions of this Part relating to performers’ right if it is given by a qualifying individual (as defined in section 206) or takes place in a qualifying country (as so defined).]

Annotations:

Editorial Information X2 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

CHAPTER 2

ECONOMIC RIGHTS

[F373X3Performers' rights]

Annotations:

Editorial Information X3 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

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Amendments (Textual) F373 Pt. 2 Ch. 2: cross-heading inserted (1.2.2006) at beginning of Chapter by The Performances (Moral

Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 4(5) (with reg. 8)

[F374X4182Consent required for recording, &c. of live performance.

(1) A performer’s rights are infringed by a person who, without his consent— (a) makes a recording of the whole or any substantial part of a qualifying

performance directly from the live performance, (b) broadcasts live, F375. . . the whole or any substantial part of a qualifying

performance, (c) makes a recording of the whole or any substantial part of a qualifying

performance directly from a broadcast of, F376. . . the live performance.

(2) F377. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In an action for infringement of a performer’s rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given.]

Annotations:

Editorial Information X4 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F374 S. 182 substituted (1.12.1996) by S.I. 1996/2967, reg. 20(1) (with Pt. III) F375 Words in s. 182(1)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F376 Words in s. 182(1)(c) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F377 S. 182(2) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F378X5182AConsent required for copying of recording.

(1) A performer’s rights are infringed by a person who, without his consent, makes F379. . . a copy of a recording of the whole or any substantial part of a qualifying performance.

[F380(1A) In subsection (1), making a copy of a recording includes making a copy which is transient or is incidental to some other use of the original recording.]

(2) It is immaterial whether the copy is made directly or indirectly.

(3) The right of a performer under this section to authorise or prohibit the making of such copies is referred to in [F381this Chapter] as “reproduction right”.]

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Annotations:

Editorial Information X5 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F378 S. 182A inserted (1.12.1996) by S.I. 1996/2967, reg. 20(2) (with Pt. III) F379 Words in s. 182A(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I.2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F380 S. 182A(1A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 8(3) (with regs. 31-40) F381 Words in S. 182A(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

[F382X6182BConsent required for issue of copies to public.

(1) A performer’s rights are infringed by a person who, without his consent, issues to the public copies of a recording of the whole or any substantial part of a qualifying performance.

(2) References in this Part to the issue to the public of copies of a recording are to— (a) the act of putting into circulation in the EEA copies not previously put into

circulation in the EEA by or with the consent of the performer, or (b) the act of putting into circulation outside the EEA copies not previously put

into circulation in the EEA or elsewhere.

(3) References in this Part to the issue to the public of copies of a recording do not include —

(a) any subsequent distribution, sale, hiring or loan of copies previously put into circulation (but see section 182C: consent required for rental or lending), or

(b) any subsequent importation of such copies into the United Kingdom or another EEA state,

except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEA copies previously put into circulation outside the EEA.

(4) References in this Part to the issue of copies of a recording of a performance include the issue of the original recording of the live performance.

(5) The right of a performer under this section to authorise or prohibit the issue of copies to the public is referred to in [F383this Chapter] as “distribution right”.]

Annotations:

Editorial Information X6 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

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Amendments (Textual) F382 S. 182B inserted (1.12.1996) by S.I. 1996/2967, reg. 20(2) (with Pt. III) F383 Words in s. 182B(5) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

[F384X7182CConsent required for rental or lending of copies to public.

(1) A performer’s rights are infringed by a person who, without his consent, rents or lends to the public copies of a recording of the whole or any substantial part of a qualifying performance.

(2) In [F385this Chapter], subject to the following provisions of this section— (a) “rental” means making a copy of a recording available for use, on terms that

it will or may be returned, for direct or indirect economic or commercial advantage, and

(b) “lending” means making a copy of a recording available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public.

(3) The expressions “rental” and “lending” do not include— (a) making available for the purpose of public performance, playing or showing

in public [F386or communication to the public]; (b) making available for the purpose of exhibition in public; or (c) making available for on-the-spot reference use.

(4) The expression “lending” does not include making available between establishments which are accessible to the public.

(6) References in [F385this Chapter] to the rental or lending of copies of a recording of a performance include the rental or lending of the original recording of the live performance.

(7) In [F385this Chapter]—

“rental right” means the right of a performer under this section to authorise or prohibit the rental of copies to the public, and

“lending right” means the right of a performer under this section to authorise or prohibit the lending of copies to the public.]

Annotations:

Editorial Information X7 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

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Amendments (Textual) F384 S. 182C inserted (1.12.1996) by S.I. 1996/2967, reg. 20(2) (with Pt. III) F385 Words in s. 182C(2)(6)(7) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F386 Words in s. 182C(3)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg.2(1), Sch. 1 para. 6(2)(c) (with regs. 31-40)

[F387X8182CAConsent required for making available to the public

(1) A performer’s rights are infringed by a person who, without his consent, makes available to the public a recording of the whole or any substantial part of a qualifying performance by electronic transmission in such a way that members of the public may access the recording from a place and at a time individually chosen by them.

(2) The right of a performer under this section to authorise or prohibit the making available to the public of a recording is referred to in [F388this Chapter] as “making available right.]

Annotations:

Editorial Information X8 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F387 S. 182CA inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 7(1) (with regs. 31-40) F388 Words in s. 182CA(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

[F389X9182DRight to equitable remuneration for exploitation of sound recording.

(1) Where a commercially published sound recording of the whole or any substantial part of a qualifying performance—

(a) is played in public, or [F390(b) is communicated to the public otherwise than by its being made available to

the public in the way mentioned in section 182CA(1),] the performer is entitled to equitable remuneration from the owner of the copyright in the sound recording.

[F391(1A) In subsection (1), the reference to publication of a sound recording includes making it available to the public by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.]

(2) The right to equitable remuneration under this section may not be assigned by the performer except to a collecting society for the purpose of enabling it to enforce the right on his behalf.

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(3) The amount payable by way of equitable remuneration is as agreed by or on behalf of the persons by and to whom it is payable, subject to the following provisions.

(4) In default of agreement as to the amount payable by way of equitable remuneration, the person by or to whom it is payable may apply to the Copyright Tribunal to determine the amount payable.

(5) A person to or by whom equitable remuneration is payable may also apply to the Copyright Tribunal—

(a) to vary any agreement as to the amount payable, or (b) to vary any previous determination of the Tribunal as to that matter;

but except with the special leave of the Tribunal no such application may be made within twelve months from the date of a previous determination.

An order made on an application under this subsection has effect from the date on which it is made or such later date as may be specified by the Tribunal.

(6) On an application under this section the Tribunal shall consider the matter and make such order as to the method of calculating and paying equitable remuneration as it may determine to be reasonable in the circumstances, taking into account the importance of the contribution of the performer to the sound recording.

(7) An agreement is of no effect in so far as it purports— (a) to exclude or restrict the right to equitable remuneration under this section, or (b) to prevent a person questioning the amount of equitable remuneration or to

restrict the powers of the Copyright Tribunal under this section.

[F392(8) In this section “collecting society” means a society or other organisation which has as its main object, or one of its main objects, the exercise of the right to equitable remuneration on behalf of more than one performer.]]

Annotations:

Editorial Information X9 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F389 S. 182D inserted (1.12.1996) by S.I. 1996/2967, reg. 20(2) (with Pt. III) F390 S. 182D(1)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 7(2) (with regs. 31-40) F391 S. 182D(1A) inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 3(2) (with reg. 8) F392 S. 182D(8) inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 3(3) (with reg. 8)

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Modifications etc. (not altering text) C95 S. 182D modified (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 34 (with regs. 31-40)

X10183 Infringement of performer’s rights by use of recording made without consent.

A performer’s rights are infringed by a person who, without his consent— (a) shows or plays in public the whole or any substantial part of a qualifying

performance, or (b) [F393communicates to the public] the whole or any substantial part of a

qualifying performance, by means of a recording which was, and which that person knows or has reason to believe was, made without the performer’s consent.

Annotations:

Editorial Information X10 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F393 Words in s. 183(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 13(1)(a) (with regs. 31-40)

X11184 Infringement of performer’s rights by importing, possessing or dealing with illicit recording.

(1) A performer’s rights are infringed by a person who, without his consent— (a) imports into the United Kingdom otherwise than for his private and domestic

use, or (b) in the course of a business possesses, sells or lets for hire, offers or exposes

for sale or hire, or distributes, a recording of a qualifying performance which is, and which that person knows or has reason to believe is, an illicit recording.

(2) Where in an action for infringement of a performer’s rights brought by virtue of this section a defendant shows that the illicit recording was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable payment in respect of the act complained of.

(3) In subsection (2) “innocently acquired” means that the person acquiring the recording did not know and had no reason to believe that it was an illicit recording.

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Annotations:

Editorial Information X11 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

X12 Rights of person having recording rights

Annotations:

Editorial Information X12 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

X13185 Exclusive recording contracts and persons having recording rights.

(1) In [F394this Chapter] an “exclusive recording contract” means a contract between a performer and another person under which that person is entitled to the exclusion of all other persons (including the performer) to make recordings of one or more of his performances with a view to their commercial exploitation.

(2) References in [F394this Chapter] to a “person having recording rights”, in relation to a performance, are (subject to subsection (3)) to a person—

(a) who is party to and has the benefit of an exclusive recording contract to which the performance is subject, or

(b) to whom the benefit of such a contract has been assigned, and who is a qualifying person.

(3) If a performance is subject to an exclusive recording contract but the person mentioned in subsection (2) is not a qualifying person, references in [F394this Chapter] to a “person having recording rights” in relation to the performance are to any person—

(a) who is licensed by such a person to make recordings of the performance with a view to their commercial exploitation, or

(b) to whom the benefit of such a licence has been assigned, and who is a qualifying person.

(4) In this section “with a view to commercial exploitation” means with a view to the recordings being sold or let for hire, or shown or played in public.

Annotations:

Editorial Information X13 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

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Amendments (Textual) F394 Words in s. 185(1)-(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X14186 Consent required for recording of performance subject to exclusive contract.

(1) A person infringes the rights of a person having recording rights in relation to a performance who, without his consent or that of the performer, makes a recording of the whole or any substantial part of the performance F395. . . .

(2) In an action for infringement of those rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given.

Annotations:

Editorial Information X14 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F395 Words in s. 186(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

X15187 Infringement of recording rights by use of recording made without consent.

(1) A person infringes the rights of a person having recording rights in relation to a performance who, without his consent or, in the case of a qualifying performance, that of the performer—

(a) shows or plays in public the whole or any substantial part of the performance, or

(b) [F396communicates to the public] the whole or any substantial part of the performance,

by means of a recording which was, and which that person knows or has reason to believe was, made without the appropriate consent.

(2) The reference in subsection (1) to “the appropriate consent” is to the consent of— (a) the performer, or (b) the person who at the time the consent was given had recording rights in

relation to the performance (or, if there was more than one such person, of all of them).

Annotations:

Editorial Information X15 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on

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1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Amendments (Textual) F396 Words in s. 187(1)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 13(1)(b) (with regs. 31-40)

X16188 Infringement of recording rights by importing, possessing or dealing with illicit recording.

(1) A person infringes the rights of a person having recording rights in relation to a performance who, without his consent or, in the case of a qualifying performance, that of the performer—

(a) imports into the United Kingdom otherwise than for his private and domestic use, or

(b) in the course of a business possesses, sells or lets for hire, offers or exposes for sale or hire, or distributes,

a recording of the performance which is, and which that person knows or has reason to believe is, an illicit recording.

(2) Where in an action for infringement of those rights brought by virtue of this section a defendant shows that the illicit recording was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable payment in respect of the act complained of.

(3) In subsection (2) “innocently acquired” means that the person acquiring the recording did not know and had no reason to believe that it was an illicit recording.

Annotations:

Editorial Information X16 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

X17 Exceptions to rights conferred

Annotations:

Editorial Information X17 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

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X18189 Acts permitted notwithstanding rights conferred by [F397this Chapter].

The provisions of Schedule 2 specify acts which may be done notwithstanding the rights conferred by [F398this Chapter], being acts which correspond broadly to certain of those specified in Chapter III of Part I (acts permitted notwithstanding copyright).

Annotations:

Editorial Information X18 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F397 Words in heading to s. 189 substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F398 Words in s. 189 substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X19190 Power of tribunal to give consent on behalf of performer in certain cases.

[F399(1) The Copyright Tribunal may, on the application of a person wishing to make a copy of a recording of a performance, give consent in a case where the identity or whereabouts of the person entitled to the reproduction right cannot be ascertained by reasonable inquiry.]

(2) Consent given by the Tribunal has effect as consent of [F400the person entitled to the reproduction right] for the purposes of—

(a) the provisions of [F401this Chapter] relating to performers’ rights, and (b) section 198(3)(a) (criminal liability: sufficient consent in relation to

qualifying performances), and may be given subject to any conditions specified in the Tribunal’s order.

(3) The Tribunal shall not give consent under subsection (1)(a) except after the service or publication of such notices as may be required by rules made under section 150 (general procedural rules) or as the Tribunal may in any particular case direct.

F402(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In any case the Tribunal shall take into account the following factors— (a) whether the original recording was made with the performer’s consent and

is lawfully in the possession or control of the person proposing to make the further recording;

(b) whether the making of the further recording is consistent with the obligations of the parties to the arrangements under which, or is otherwise consistent with the purposes for which, the original recording was made.

(6) Where the Tribunal gives consent under this section it shall, in default of agreement between the applicant and [F403the person entitled to the reproduction right], make such order as it thinks fit as to the payment to be made to [F404that person] in consideration of consent being given.

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Annotations:

Editorial Information X19 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F399 S. 190(1) substituted (1.12.1996) by S.I. 1996/2967, reg. 23(2) (with Pt. III) F400 Words in s. 190(2) substituted (1.12.1996) by S.I. 1996/2967, reg. 23(3) (with Pt. III) F401 Words in s. 190(2)(a) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F402 S. 190(4) omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 23(4) (with Pt. III) F403 Words in s. 190(6) substituted (1.12.1996) by S.I. 1996/2967, reg. 23(5)(a) (with Pt. III) F404 Words in s. 190(6) substituted (1.12.1996) by S.I. 1996/2967, reg. 23(5)(b) (with Pt. III)

[X20F405Duration of rights]

Annotations:

Editorial Information X20 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F405 Crossheading substituted (1.12.1996) by S.I. 1996/2967, reg. 21(5)(a) (with Pt. III)

[F406X21191Duration of rights.

(1) The following provisions have effect with respect to the duration of the rights conferred by [F407this Chapter].

(2) The rights conferred by [F407this Chapter] in relation to a performance expire— (a) at the end of the period of 50 years from the end of the calendar year in which

the performance takes place, or (b) if during that period a recording of the performance is released, 50 years from

the end of the calendar year in which it is released, subject as follows.

(3) For the purposes of subsection (2) a recording is “released” when it is first published, played or shown in public [F408 or communicated to the public]; but in determining whether a recording has been released no account shall be taken of any unauthorised act.

(4) Where a performer is not a national of an EEA state, the duration of the rights conferred by [F407this Chapter] in relation to his performance is that to which the performance

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is entitled in the country of which he is a national, provided that does not exceed the period which would apply under subsections (2) and (3).

(5) If or to the extent that the application of subsection (4) would be at variance with an international obligation to which the United Kingdom became subject prior to 29th October 1993, the duration of the rights conferred by [F407this Chapter] shall be as specified in subsections (2) and (3).]

Annotations:

Editorial Information X21 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F406 S. 191 substituted (1.1.1996) by S.I. 1995/3297, reg. 10 (with Pt. III) F407 Words in s. 191(1)(2)(4)(5) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F408 Words in s. 191(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(2)(d) (with regs. 31-40)

[F409X22Performers’ property rights]

Annotations:

Editorial Information X22 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F409 Crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

[F410X23191APerformers’ property rights.

(1) The following rights conferred by [F411this Chapter] on a performer— reproduction right (section 182A), distribution right (section 182B), rental right and lending right (section 182C), [F412making available right (section 182CA),]

are property rights (“F413. . . performer’s property rights”).

(2) References in [F411this Chapter] to the consent of the performer shall be construed in relation to a performer’s property rights as references to the consent of the rights owner.

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(3) Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of a performer’s property rights in relation to a performance, the rights owner for any purpose of [F411this Chapter] is the person who is entitled to the aspect of those rights relevant for that purpose.

(4) Where a performer’s property rights (or any aspect of them) is owned by more than one person jointly, references in [F411this Chapter] to the rights owner are to all the owners, so that, in particular, any requirement of the licence of the rights owner requires the licence of all of them.]

Annotations:

Editorial Information X23 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F410 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III) F411 Words in s. 191A(1)-(4) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F412 Words in s. 191A(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 7(3) (with regs. 31-40) F413 Word in s. 191A(1) omitted by virtue of The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 4 (with reg. 8)

[F414X24191BAssignment and licences.

(1) A performer’s property rights are transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.

(2) An assignment or other transmission of a performer’s property rights may be partial, that is, limited so as to apply—

(a) to one or more, but not all, of the things requiring the consent of the rights owner;

(b) to part, but not the whole, of the period for which the rights are to subsist.

(3) An assignment of a performer’s property rights is not effective unless it is in writing signed by or on behalf of the assignor.

(4) A licence granted by the owner of a performer’s property rights is binding on every successor in title to his interest in the rights, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in [F415this Chapter] to doing anything with, or without, the licence of the rights owner shall be construed accordingly.]

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Annotations:

Editorial Information X24 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F414 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III) F415 Words in s. 191B(4) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

[F416X25191CProspective ownership of a performer’s property rights.

(1) This section applies where by an agreement made in relation to a future recording of a performance, and signed by or on behalf of the performer, the performer purports to assign his performer’s property rights (wholly or partially) to another person.

(2) If on the rights coming into existence the assignee or another person claiming under him would be entitled as against all other persons to require the rights to be vested in him, they shall vest in the assignee or his successor in title by virtue of this subsection.

(3) A licence granted by a prospective owner of a performer’s property rights is binding on every successor in title to his interest (or prospective interest) in the rights, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser.

References in [F417this Chapter] to doing anything with, or without, the licence of the rights owner shall be construed accordingly.

(4) In subsection (3) “prospective owner” in relation to a performer’s property rights means a person who is prospectively entitled to those rights by virtue of such an agreement as is mentioned in subsection (1).]

Annotations:

Editorial Information X25 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F416 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III) F417 Words in s. 191C(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

[F418X26191DExclusive licences.

(1) In [F419this Chapter] an “exclusive licence” means a licence in writing signed by or on behalf of the owner of a performer’s property rights authorising the licensee to the

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exclusion of all other persons, including the person granting the licence, to do anything requiring the consent of the rights owner.

(2) The licensee under an exclusive licence has the same rights against a successor in title who is bound by the licence as he has against the person granting the licence.]

Annotations:

Editorial Information X26 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F418 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III) F419 Words in s. 191D(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

[F420X27191EPerformer’s property right to pass under will with unpublished original recording.

Where under a bequest (whether general or specific) a person is entitled beneficially or otherwise to any material thing containing an original recording of a performance which was not published before the death of the testator, the bequest shall, unless a contrary intention is indicated in the testator’s will or a codicil to it, be construed as including any performer’s rights in relation to the recording to which the testator was entitled immediately before his death.]

Annotations:

Editorial Information X27 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F420 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

[F421X28191FPresumption of transfer of rental right in case of film production agreement.

(1) Where an agreement concerning film production is concluded between a performer and a film producer, the performer shall be presumed, unless the agreement provides to the contrary, to have transferred to the film producer any rental right in relation to the film arising from the inclusion of a recording of his performance in the film.

(2) Where this section applies, the absence of signature by or on behalf of the performer does not exclude the operation of section 191C (effect of purported assignment of future rights).

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(3) The reference in subsection (1) to an agreement concluded between a performer and a film producer includes any agreement having effect between those persons, whether made by them directly or through intermediaries.

(4) Section 191G (right to equitable remuneration on transfer of rental right) applies where there is a presumed transfer by virtue of this section as in the case of an actual transfer.]

Annotations:

Editorial Information X28 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F421 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

Modifications etc. (not altering text) C96 S. 191F applied (1.12.1996) by S.I. 1996/2967, reg. 32(1) (with Pt. III)

[F422X29191GRight to equitable remuneration where rental right transferred.

(1) Where a performer has transferred his rental right concerning a sound recording or a film to the producer of the sound recording or film, he retains the right to equitable remuneration for the rental.

The reference above to the transfer of rental right by one person to another includes any arrangement having that effect, whether made by them directly or through intermediaries.

(2) The right to equitable remuneration under this section may not be assigned by the performer except to a collecting society for the purpose of enabling it to enforce the right on his behalf.

(4) The amount payable by way of equitable remuneration is as agreed by or on behalf of the persons by and to whom it is payable, subject to section 191H (reference of amount to Copyright Tribunal).

(5) An agreement is of no effect in so far as it purports to exclude or restrict the right to equitable remuneration under this section.

(6) In this section a “collecting society” means a society or other organisation which has as its main object, or one of its main objects, the exercise of the right to equitable remuneration on behalf of more than one performer.]

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Annotations:

Editorial Information X29 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F422 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

Modifications etc. (not altering text) C97 S. 191G applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 32(2) (with Pt. III) C98 S. 191G restricted (1.12.1996) by S.I. 1996/2967, reg. 33 (with Pt. III)

[F423X30191HEquitable remuneration: reference of amount to Copyright Tribunal.

(1) In default of agreement as to the amount payable by way of equitable remuneration under section 191G, the person by or to whom it is payable may apply to the Copyright Tribunal to determine the amount payable.

(2) A person to or by whom equitable remuneration is payable may also apply to the Copyright Tribunal—

(a) to vary any agreement as to the amount payable, or (b) to vary any previous determination of the Tribunal as to that matter;

but except with the special leave of the Tribunal no such application may be made within twelve months from the date of a previous determination.

An order made on an application under this subsection has effect from the date on which it is made or such later date as may be specified by the Tribunal.

(4) Remuneration shall not be considered inequitable merely because it was paid by way of a single payment or at the time of the transfer of the rental right.

(5) An agreement is of no effect in so far as it purports to prevent a person questioning the amount of equitable remuneration or to restrict the powers of the Copyright Tribunal under this section.]

Annotations:

Editorial Information X30 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

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Amendments (Textual) F423 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

[F424X31191IInfringement actionable by rights owner.

(1) An infringement of a performer’s property rights is actionable by the rights owner.

(2) In an action for infringement of a performer’s property rights all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.

(3) This section has effect subject to the following provisions of [F425this Chapter].]

Annotations:

Editorial Information X31 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F424 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III) F425 Words in s. 191I(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

[F426X32191JProvisions as to damages in infringement action.

(1) Where in an action for infringement of a performer’s property rights it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that the rights subsisted in the recording to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2) The court may in an action for infringement of a performer’s property rights having regard to all the circumstances, and in particular to—

(a) the flagrancy of the infringement, and (b) any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.]

Annotations:

Editorial Information X32 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F426 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

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[F427X33191JAInjunctions against service providers

(b) the extent to which any notice includes— (i) the full name and address of the sender of the notice;

(ii) details of the infringement in question.

(3) In this section “service provider” has the meaning given to it by regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002.

(4) Section 177 applies in respect of this section as it applies in respect of Part 1.]

Annotations:

Editorial Information X33 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F427 S. 191JA inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 27(2) (with regs. 32, 33)

[F428X34191KUndertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of a performer’s property rights in respect of which a licence is available as of right under paragraph 17 of Schedule 2A (powers exercisable in consequence of competition report) the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the Copyright Tribunal under that paragraph—

(a) no injunction shall be granted against him, (b) no order for delivery up shall be made under section 195, and (c) the amount recoverable against him by way of damages or on an account of

profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.

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(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.]

Annotations:

Editorial Information X34 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F428 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

[F429X35191LRights and remedies for exclusive licensee.

(1) An exclusive licensee has, except against the owner of a performer’s property rights, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.

(2) His rights and remedies are concurrent with those of the rights owner; and references in the relevant provisions of [F430this Chapter] to the rights owner shall be construed accordingly.

Annotations:

Editorial Information X35 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F429 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III) F430 Words in s. 191L(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

[F431X36191MExercise of concurrent rights.

(1) Where an action for infringement of a performer’s property rights brought by the rights owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the rights owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as plaintiff or added as a defendant.

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(2) A rights owner or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings.

(3) The above provisions do not affect the granting of interlocutory relief on an application by the rights owner or exclusive licensee alone.

(4) Where an action for infringement of a performer’s property rights is brought which relates (wholly or partly) to an infringement in respect of which the rights owner and an exclusive licensee have or had concurrent rights of action—

(a) the court shall in assessing damages take into account— (i) the terms of the licence, and

(ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement;

(b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and

(c) the court shall if an account of profits is directed apportion the profits between them as the court considers just, subject to any agreement between them; and these provisions apply whether or not the rights owner and the exclusive licensee are both parties to the action.

(5) The owner of a performer’s property rights shall notify any exclusive licensee having concurrent rights before applying for an order under section 195 (order for delivery up) or exercising the right conferred by section 196 (right of seizure); and the court may on the application of the licensee make such order under section 195 or, as the case may be, prohibiting or permitting the exercise by the rights owner of the right conferred by section 196, as it thinks fit having regard to the terms of the licence.]

Annotations:

Editorial Information X36 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F431 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

[F432X37Non-property rights]

Annotations:

Editorial Information X37 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

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Amendments (Textual) F432 Ss. 192A, 192B and crossheading substituted for s. 192 (1.12.1996) by S.I. 1996/2967, reg. 21(2)

(with Pt. III)

[F433X38192APerformers’ non-property rights.

(1) the rights conferred on a performer by -

section 182 (consent required for recording, &c. of live performance),

section 183 (infringement of performer’s rights by use of recording made without consent), and

section 184 (infringement of performer’s rights importing, possessing or dealing with illicit recording),

are not assignable or transmissible, except to the following extent.

They are referred to in [F434this Chapter] as “F435. . . performer’s non-property rights”.

(2) On the death of a person entitled to any such right— (a) the right passes to such person as he may by testamentary disposition

specifically direct, and (b) if or to the extent that there is no such direction, the right is exercisable by

his personal representatives.

(3) References in [F434this Chapter] to the performer, in the context of the person having any such right, shall be construed as references to the person for the time being entitled to exercise those rights.

(4) Where by virtue of subsection (2)(a) a right becomes exercisable by more than one person, it is exercisable by each of them independently of the other or others.

(5) Any damages recovered by personal representatives by virtue of this section in respect of an infringement after a person’s death shall devolve as part of his estate as if the right of action had subsisted and been vested in him immediately before his death.]

Annotations:

Editorial Information X38 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F433 Ss. 192A, 192B and crossheading substituted for s. 192 (1.12.1996) by S.I. 1996/2967, reg. 21(2)

(with Pt. III) F434 Words in s. 192A(1)(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F435 Word in s. 192A(1) omitted by virtue of The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 5 (with reg. 8)

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[F436X39192BTransmissibility of rights of person having recording rights.

(1) The rights conferred by [F437this Chapter] on a person having recording rights are not assignable or transmissible.

(2) This does not affect section 185(2)(b) or (3)(b), so far as those provisions confer rights under [F437this Chapter] on a person to whom the benefit of a contract or licence is assigned.]

Annotations:

Editorial Information X39 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F436 Ss. 192A, 192B and crossheading substituted for s. 192 (1.12.1996) by S.I. 1996/2967, reg. 21(2)

(with Pt. III) F437 Words in s. 192B(1)(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X40193 Consent.

(1) Consent for the purposes of [F438this Chapter][F439by a person having a performer’s non-property rights, or by a person having recording rights,] may be given in relation to a specific performance, a specified description of performances or performances generally, and may relate to past or future performances.

(2) A person having recording rights in a performance is bound by any consent given by a person through whom he derives his rights under the exclusive recording contract or licence in question, in the same way as if the consent had been given by him.

(3) Where [F440a performer’s non-property right] passes to another person, any consent binding on the person previously entitled binds the person to whom the right passes in the same way as if the consent had been given by him.

Annotations:

Editorial Information X40 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F438 Words in s. 193(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F439 Words in s. 193(1) inserted (1.12.1996) by S.I. 1996/2967, reg. 21(3)(a) (with Pt. III) F440 Words in s. 193(3) substituted (1.12.1996) by S.I. 1996/2967, reg. 21(3)(b) (with Pt. III)

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X41F441. . .

Annotations:

Editorial Information X41 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F441 Crossheading before s. 194 omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 21(5)(b) (with Pt. III)

X42194 Infringement actionable as breach of statutory duty.

An infringement of [F442— (a) a performer’s non-property rights, or (b) any right conferred by [F443this Chapter] on a person having recording rights,]

is actionable by the person entitled to the right as a breach of statutory duty.

Annotations:

Editorial Information X42 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F442 Words in s. 194 substituted (1.12.1996) by S.I. 1996/2967, reg. 21(4) (with Pt. III) F443 Words in s. 194(b) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

[F444X43Delivery up or seizure of illicit recordings]

Annotations:

Editorial Information X43 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F444 Heading before s. 195 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(5)(c) (with Pt. III)

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X44195 Order for delivery up.

(1) Where a person has in his possession, custody or control in the course of a business an illicit recording of a performance, a person having performer’s rights or recording rights in relation to the performance under [F445this Chapter] may apply to the court for an order that the recording be delivered up to him or to such other person as the court may direct.

(2) An application shall not be made after the end of the period specified in section 203; and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section 204 (order as to disposal of illicit recording).

(3) A person to whom a recording is delivered up in pursuance of an order under this section shall, if an order under section 204 is not made, retain it pending the making of an order, or the decision not to make an order, under that section.

(4) Nothing in this section affects any other power of the court.

Annotations:

Editorial Information X44 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F445 Words in s. 195(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

Modifications etc. (not altering text) C99 S. 195 extended by S.I. 1991/724, art. 2(1)(n)

X45196 Right to seize illicit recordings.

(1) An illicit recording of a performance which is found exposed or otherwise immediately available for sale or hire, and in respect of which a person would be entitled to apply for an order under section 195, may be seized and detained by him or a person authorised by him.

The right to seize and detain is exercisable subject to the following conditions and is subject to any decision of the court under section 204 (order as to disposal of illicit recording).

(2) Before anything is seized under this section notice of the time and place of the proposed seizure must be given to a local police station.

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(5) In this section— “premises” includes land, buildings, fixed or moveable structures, vehicles,

vessels, aircraft and hovercraft; and “prescribed” means prescribed by order of the Secretary of State.

(6) An order of the Secretary of State under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Annotations:

Editorial Information X45 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

X46197 Meaning of “illicit recording”.

(1) In [F446this Chapter]“illicit recording”, in relation to a performance, shall be construed in accordance with this section.

(2) For the purposes of a performer’s rights, a recording of the whole or any substantial part of a performance of his is an illicit recording if it is made, otherwise than for private purposes, without his consent.

(3) For the purposes of the rights of a person having recording rights, a recording of the whole or any substantial part of a performance subject to the exclusive recording contract is an illicit recording if it is made, otherwise than for private purposes, without his consent or that of the performer.

(4) For the purposes of sections 198 and 199 (offences and orders for delivery up in criminal proceedings), a recording is an illicit recording if it is an illicit recording for the purposes mentioned in subsection (2) or subsection (3).

(5) In [F446this Chapter]“illicit recording” includes a recording falling to be treated as an illicit recording by virtue of any of the following provisions of Schedule 2—

paragraph 4(3) (recordings made for purposes of instruction or examination), paragraph 6(2) (recordings made by educational establishments for educational purposes), paragraph 12(2) (recordings of performance in electronic form retained on transfer of principal recording), F447. . . paragraph 16(3) (recordings made for purposes of broadcast F448. . . ), [F449paragraph 17A(2) (recording for the purposes of time-shifting), or paragraph 17B(2) (photographs of broadcasts),]

but otherwise does not include a recording made in accordance with any of the provisions of that Schedule.

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(6) It is immaterial for the purposes of this section where the recording was made.

Annotations:

Editorial Information X46 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F446 Words in s. 197(1)(5) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F447 Words in s. 197(5) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F448 Words in s. 197(5) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F449 Words in s. 197(5) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 20(4) (with regs. 31-40)

[F450197APresumptions relevant to recordings of performances

(1) In proceedings brought by virtue of this Part with respect to the rights in a performance, where copies of a recording of the performance as issued to the public bear a statement that a named person was the performer, the statement shall be admissible as evidence of the fact stated and shall be presumed to be correct until the contrary is proved.

(2) Subsection (1) does not apply to proceedings for an offence under section 198 (criminal liability for making etc. illicit recordings); but without prejudice to its application in proceedings for an order under section 199 (order for delivery up in criminal proceedings).]

Annotations:

Amendments (Textual) F450 S. 197A inserted (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations 2006 (S.I.

2006/1028), reg. 2(2), Sch. 2 para. 10

X47 Offences

Annotations:

Editorial Information X47 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

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X48198 Criminal liability for making, dealing with or using illicit recordings.

(1) A person commits an offence who without sufficient consent— (a) makes for sale or hire, or (b) imports into the United Kingdom otherwise than for his private and domestic

use, or (c) possesses in the course of a business with a view to committing any act

infringing the rights conferred by [F451this Chapter], or (d) in the course of a business—

(i) sells or lets for hire, or (ii) offers or exposes for sale or hire, or

(iii) distributes, a recording which is, and which he knows or has reason to believe is, an illicit recording.

[F452(1A) A person who infringes a performer’s making available right— (a) in the course of a business, or (b) otherwise than in the course of a business to such an extent as to affect

prejudicially the owner of the making available right, commits an offence if he knows or has reason to believe that, by doing so, he is infringing the making available right in the recording.]

(2) A person commits an offence who causes a recording of a performance made without sufficient consent to be—

(a) shown or played in public, or [F453(b) communicated to the public,]

thereby infringing any of the rights conferred by [F451this Chapter], if he knows or has reason to believe that those rights are thereby infringed.

(3) In subsections (1) and (2) “sufficient consent” means— (a) in the case of a qualifying performance, the consent of the performer, and (b) in the case of a non-qualifying performance subject to an exclusive recording

contract— (i) for the purposes of subsection (1)(a) (making of recording), the

consent of the performer or the person having recording rights, and (ii) for the purposes of subsection (1)(b), (c) and (d) and subsection (2)

(dealing with or using recording), the consent of the person having recording rights.

The references in this subsection to the person having recording rights are to the person having those rights at the time the consent is given or, if there is more than one such person, to all of them.

(4) No offence is committed under subsection (1) or (2) by the commission of an act which by virtue of any provision of Schedule 2 may be done without infringing the rights conferred by [F451this Chapter].

(5) A person guilty of an offence under subsection (1)(a), (b) or (d)(iii) is liable— (a) on summary conviction to imprisonment for a term not exceeding six months

or a fine not exceeding [F454£50,000], or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding

[F455ten] years, or both.

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[F456(5A) A person guilty of an offence under subsection (1A) is liable— (a) on summary conviction to imprisonment for a term not exceeding three

months or a fine not exceeding [F454£50,000], or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding

two years, or both.]

(6) A person guilty of any other offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale or imprisonment for a term not exceeding six months, or both.

Annotations:

Editorial Information X48 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F451 Words in s. 198(1)(c)(2)(4) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F452 S. 198(1A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 26(3)(a) (with regs. 31-40) F453 S. 198(2)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 4(5) (with regs. 31-40) F454 Words in s. 198(5)(a)(5A)(a) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 42(3),

47(1) F455 S. 198(5)(b) substituted (20.11.2002) by 2002 c. 25, s. 1(3)(5); S.I. 2002/2749, art. 2 F456 S. 198(5A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 26(3)(b) (with regs. 31-40)

[F457X49198AEnforcement by local weights and measures authority.

(1) It is the duty of every local weights and measures authority to enforce within their area the provisions of section 198.

(2) The following provisions of the Trade Descriptions Act 1968 apply in relation to the enforcement of that section by such an authority as in relation to the enforcement of that Act—

section 27 (power to make test purchases),

section 28 (power to enter premises and inspect and seize goods and documents),

section 29 (obstruction of authorised officers), and

section 33 (compensation for loss, &c. of goods seized).

(3) Subsection (1) above does not apply in relation to the enforcement of section 198 in Northern Ireland, but it is the duty of the Department of Economic Development to enforce that section in Northern Ireland.

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For that purpose the provisions of the M22Trade Descriptions Act 1968 specified in subsection (2) apply as if for the references to a local weights and measures authority and any officer of such an authority there were substituted references to that Department and any of its officers.

(4) Any enactment which authorises the disclosure of information for the purpose of facilitating the enforcement of the Trade Descriptions Act 1968 shall apply as if section 198 were contained in that Act and as if the functions of any person in relation to the enforcement of that section were functions under that Act.

(5) Nothing in this section shall be construed as authorising a local weights and measures authority to bring proceedings in Scotland for an offence.]

Annotations:

Editorial Information X49 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F457 S. 198A inserted (6.4.2007) by 1994 c. 33, ss. 165(3), 172(2); S.I. 2007/621, art. 2

Marginal Citations M22 1968 c. 29.

X50199 Order for delivery up in criminal proceedings.

(1) The court before which proceedings are brought against a person for an offence under section 198 may, if satisfied that at the time of his arrest or charge he had in his possession, custody or control in the course of a business an illicit recording of a performance, order that it be delivered up to a person having performers’ rights or recording rights in relation to the performance or to such other person as the court may direct.

(2) For this purpose a person shall be treated as charged with an offence— (a) in England, Wales and Northern Ireland, when he is orally charged or is served

with a summons or indictment; (b) in Scotland, when he is cautioned, charged or served with a complaint or

indictment.

(a) after the end of the period specified in section 203 (period after which remedy of delivery up not available), or

(b) if it appears to the court unlikely that any order will be made under section 204 (order as to disposal of illicit recording).

(4) An appeal lies from an order made under this section by a magistrates’ court— (a) in England and Wales, to the Crown Court, and

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(b) in Northern Ireland, to the county court; and in Scotland, where an order has been made under this section, the person from whose possession, custody or control the illicit recording has been been removed may, without predudice to any other form of appeal under any rule of law, appeal against that order in the same manner as against sentence.

(5) A person to whom an illicit recording is delivered up in pursuance of an order under this section shall retain it pending the making of an order, or the decision not to make an order, under section 204.

(6) Nothing in in this section affects the powers of the court under [F458section 143 of the Powers of Criminal Courts (Sentencing) Act 2000], [F459Part II of the Proceeds of Crime (Scotland) Act 1995] or [F460Article 11 of the Criminal Justice (Northern Ireland) Order 1994] (general provisions as to forfeiture in criminal proceedings).

Annotations:

Editorial Information X50 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F458 Words in s. 199(6) substituted (25.8.2000) by 2000 c. 6 ss. 165, 168, Sch. 9 para. 116 F459 Words in s. 199(6) substituted (1.4.1996) by 1995 c. 20, ss. 5, 7(2), Sch. 4 para. 70(3) F460 Words in s. 199(6) substituted (9.1.1995) by S.I. 1994/2795 (N.I. 15), art. 26(1), Sch. 2 para. 14; S.R.

1994/446, art. 2

X51200 Search warrants.

(a) that an offence under [F461section 198(1) or (1A)](offences of making, importing [F462, possessing, selling etc.] or distributing illicit recordings) has been or is about to be committed in any premises, and

(b) that evidence that such an offence has been or is about to be committed is in those premises,

he may issue a warrant authorising a constable to enter and search the premises, using such reasonable force as is necessary.

(2) The power conferred by subsection (1) does not, in England and Wales, extend to authorising a search for material of the kinds mentioned in section 9(2) of the M23Police and Criminal Evidence Act 1984 (certain classes of personal or confidential material).

(3) A warrant under subsection (1)— (a) may authorise persons to accompany any constable executing the warrant, and (b) remains in force for [F463three months] from the date of its issue.

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[F464(3A) In executing a warrant issued under subsection (1) a constable may seize an article if he reasonably believes that it is evidence that any offence under [F465section 198(1) or (1A)] has been or is about to be committed.]

(4) In this section “premises” includes land, buildings, fixed or moveable structures, vehicles, vessels, aircraft and hovercraft.

Annotations:

Editorial Information X51 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F461 Words in s. 200(1)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 26(4)(a) (with regs. 31-40) F462 Words in s. 200(1)(a) inserted (20.11.2002) by 2002 c. 25, s. 2(3)(a)(ii); S.I. 2002/2749, art. 2 F463 Words in s. 200(3)(b) substituted (1.1.2006) by Serious Organised Crime and Police Act 2005 (c. 15),

ss. 174(1), 178, Sch. 16 para. 6(3); S.I. 2005/3495, art. 2(1)(s) (subject to art. 2(2)) F464 S. 200(3A) inserted (20.11.2002) by 2002 c. 25, s. 2(3)(b); S.I. 2002/2749, art. 2 F465 Words in s. 200(3A) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 26(4)(b) (with reg. 31-40)

Marginal Citations M23 1984 c. 60.

X52201 False representation of authority to give consent.

(1) It is an offence for a person to represent falsely that he is authorised by any person to give consent for the purposes of [F466this Chapter] in relation to a performance, unless he believes on reasonable grounds that he is so authorised.

(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both.

Annotations:

Editorial Information X52 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F466 Words in s. 201(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

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X53202 Offence by body corporate: liability of officers.

(1) Where an offence under [F467this Chapter] committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) In relation to a body corporate whose affairs are managed by its members “director” means a member of the body corporate.

Annotations:

Editorial Information X53 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F467 Words in s. 202(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X54 Supplementary provisions with respect to delivery up and seizure

Annotations:

Editorial Information X54 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

X55203 Period after which remedy of delivery up not available.

(1) An application for an order under section 195 (order for delivery up in civil proceedings) may not be made after the end of the period of six years from the date on which the illicit recording in question was made, subject to the following provisions.

(2) If during the whole or any part of that period a person entitled to apply for an order— (a) is under a disability, or (b) is prevented by fraud or concealment from discovering the facts entitling him

to apply, an application may be made by him at any time before the end of the period of six years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.

(3) In subsection (2) “disability”— (a) in England and Wales, has the same meaning as in the M24Limitation Act 1980; (b) in Scotland, means legal disability within the meaning of the M25Prescription

and Limitations (Scotland) Act 1973;

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(4) An order under section 199 (order for delivery up in criminal proceedings) shall not, in any case, be made after the end of the period of six years from the date on which the illicit recording in question was made.

Annotations:

Editorial Information X55 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Marginal Citations M24 1980 c. 58. M25 1973 c. 52. M26 1958 c. 10 (N.I.).

X56204 Order as to disposal of illicit recording.

(1) An application may be made to the court for an order that an illicit recording of a performance delivered up in pursuance of an order under section 195 or 199, or seized and detained in pursuance of the right conferred by section 196, shall be—

(a) forfeited to such person having performer’s rights or recording rights in relation to the performance as the court may direct, or

(b) destroyed or otherwise dealt with as the court may think fit, or for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the court shall consider whether other remedies available in an action for infringement of the rights conferred by [F468this Chapter] would be adequate to compensate the person or persons entitled to the rights and to protect their interests.

(3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the recording, and any such person is entitled—

(a) to appear in proceedings for an order under this section, whether or not he was served with notice, and

(4) Where there is more than one person interested in a recording, the court shall make such order as it thinks just and may (in particular) direct that the recording be sold, or otherwise dealt with, and the proceeds divided.

(5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the recording was before being delivered up or seized is entitled to its return.

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(6) References in this section to a person having an interest in a recording include any person in whose favour an order could be made in respect of the recording

[F469(a) under this section or under section 114 or 231 of this Act; (b) under section 24D of the Registered Designs Act 1949; (c) under section 19 of Trade Marks Act 1994 (including that section as

applied by regulation 4 of the Community Trade Mark Regulations 2006 (SI 2006/1027)); or

(d) under regulation 1C of the Community Design Regulations 2005 (SI 2005/2339).]

Annotations:

Editorial Information X56 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F468 Words in s. 204(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F469 Words in s. 204(6) substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.)

Regulations 2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 11

Modifications etc. (not altering text) C100 S. 204 extended by S.I. 1991/724, art. 2(1)(n)

[F470X57204AForfeiture of illicit recordings: England and Wales or Northern Ireland

(1) In England and Wales or Northern Ireland where illicit recordings of a performance have come into the possession of any person in connection with the investigation or prosecution of a relevant offence, that person may apply under this section for an order for the forfeiture of the illicit recordings.

(2) For the purposes of this section “relevant offence” means— (a) an offence under [F471section 198(1) or (1A)](criminal liability for making or

dealing with illicit recordings), (b) an offence under the Trade Descriptions Act 1968 (c. 29), or (c) an offence involving dishonesty or deception.

(3) An application under this section may be made— (a) where proceedings have been brought in any court for a relevant offence

relating to some or all of the illicit recordings, to that court, or (b) where no application for the forfeiture of the illicit recordings has been made

under paragraph (a), by way of complaint to a magistrates’ court.

(4) On an application under this section, the court shall make an order for the forfeiture of any illicit recordings only if it is satisfied that a relevant offence has been committed in relation to the illicit recordings.

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(5) A court may infer for the purposes of this section that such an offence has been committed in relation to any illicit recordings if it is satisfied that such an offence has been committed in relation to illicit recordings which are representative of the illicit recordings in question (whether by reason of being part of the same consignment or batch or otherwise).

(6) Any person aggrieved by an order made under this section by a magistrates’ court, or by a decision of such a court not to make such an order, may appeal against that order or decision—

(a) in England and Wales, to the Crown Court, or (b) in Northern Ireland, to the county court.

(8) Subject to subsection (9), where any illicit recordings are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.

(9) On making an order under this section the court may direct that the illicit recordings to which the order relates shall (instead of being destroyed) be forfeited to the person having the performers’ rights or recording rights in question or dealt with in such other way as the court considers appropriate.]

Annotations:

Editorial Information X57 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F470 S. 204A inserted (20.11.2002) by 2002 c. 25, s. 4; S.I. 2002/2749, art. 2 F471 Words in s. 204A(2)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 26(4)(c) (with regs. 31-40)

X58F472204BForfeiture: Scotland

(1) In Scotland the court may make an order under this section for the forfeiture of any illicit recordings.

(2) An order under this section may be made— (a) on an application by the procurator-fiscal made in the manner specified in

section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) where a person is convicted of a relevant offence, in addition to any other

penalty which the court may impose.

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(3) On an application under subsection (2)(a), the court shall make an order for the forfeiture of any illicit recordings only if it is satisfied that a relevant offence has been committed in relation to the illicit recordings.

(4) The court may infer for the purposes of this section that such an offence has been committed in relation to any illicit recordings if it is satisfied that such an offence has been committed in relation to illicit recordings which are representative of the illicit recordings in question (whether by reason of being part of the same consignment or batch or otherwise).

(5) The procurator-fiscal making the application under subsection (2)(a) shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the illicit recordings to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the illicit recordings should not be forfeited.

(7) Any person upon whom notice is served under subsection (5) and any other person claiming to be the owner of, or otherwise to have an interest in, illicit recordings to which an application under this section relates shall be entitled to appear at the hearing of the application to show cause why the illicit recordings should not be forfeited.

(8) The court shall not make an order following an application under subsection (2)(a)— (a) if any person on whom notice is served under subsection (5) does not appear,

unless service of the notice on that person is proved, or (b) if no notice under subsection (5) has been served, unless the court is satisfied

that in the circumstances it was reasonable not to serve such notice.

(9) Where an order for the forfeiture of any illicit recordings is made following an application under subsection (2)(a), any person who appeared, or was entitled to appear, to show cause why the illicit recordings should not be forfeited may, within 21 days of the making of the order, appeal to the High Court by Bill of Suspension.

(10) Section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 shall apply to an appeal under subsection (9) as it applies to a stated case under Part 2 of that Act.

(11) An order following an application under subsection (2)(a) shall not take effect— (a) until the end of the period of 21 days beginning with the day after the day on

which the order is made, or (b) if an appeal is made under subsection (9) above within that period, until the

appeal is determined or abandoned.

(12) An order under subsection (2)(b) shall not take effect— (a) until the end of the period within which an appeal against the order could be

brought under the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) if an appeal is made within that period, until the appeal is determined or

abandoned.

(13) Subject to subsection (14), illicit recordings forfeited under this section shall be destroyed in accordance with such directions as the court may give.

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(14) On making an order under this section the court may direct that the illicit recordings to which the order relates shall (instead of being destroyed) be forfeited to the person having the performers’ rights or recording rights in question or dealt with in such other way as the court considers appropriate.

(15) For the purposes of this section— “relevant offence” means an offence under [F473section 198(1) or

(1A)](criminal liability for making or dealing with illicit recordings), or under the Trade Descriptions Act 1968 (c. 29) or any offence involving dishonesty or deception;

“the court” means— (a) in relation to an order made on an application under subsection (2)(a),

the sheriff, and (b) in relation to an order made under subsection (2)(b), the court which

imposed the penalty.

Annotations:

Editorial Information X58 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F472 S. 204B inserted (20.11.2002) by 2002 c. 25, s. 4; S.I. 2002/2749, art. 2 F473 Words in s. 204B(15) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 26(4)(d) (with regs. 31-40)

X59205 Jurisdiction of county court and sheriff court.

(1) In England, Wales and Northern Ireland a county court may entertain proceedings under—

section 195 (order for delivery up of illicit recording), or section 204 (order as to disposal of illicit recording),

[F474save that, in Northern Ireland, a county court may entertain such proceedings only]where the value of the illicit recordings in question does not exceed the county court limit for actions in tort.

(2) In Scotland proceedings for an order under either of those provisions may be brought in the sheriff court.

(3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.

Annotations:

Editorial Information X59 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on

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Amendments (Textual) F474 Words in s. 205(1) inserted by S.I. 1991/724, art. 2(8), Schedule PartI

[X60F475Licensing of performers’ property rights]

Annotations:

Editorial Information X60 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F475 S. 205A and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 22(1) (with Pt. III)

[F476X61205ALicensing of performers’ property rights.

The provisions of Schedule 2A have effect with respect to the licensing of performers’ property rights.]

Annotations:

Editorial Information X61 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F476 S. 205A inserted (1.12.1996) by S.I. 1996/2967, reg. 22(1) (with Pt. III)

[X62F477Jurisdiction of Copyright Tribunal]

Annotations:

Editorial Information X62 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F477 S. 205B and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 24 (with Pt. III)

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[F478X63205BJurisdiction of Copyright Tribunal.

(1) The Copyright Tribunal has jurisdiction under [F479this Chapter] to hear and determine proceedings under—

(a) section 182D (amount of equitable remuneration for exploitation of commercial sound recording);

(b) section 190 (application to give consent on behalf of owner of reproduction right);

(c) section 191H (amount of equitable remuneration on transfer of rental right); [F480(cc) paragraph 19 of Schedule 2 (determination of royalty or other remuneration

to be paid with respect to re-transmission of broadcast including performance or recording);]

(d) paragraph 3, 4 or 5 of Schedule 2A (reference of licensing scheme); (e) paragraph 6 or 7 of that Schedule (application with respect to licence under

licensing scheme); (f) paragraph 10, 11 or 12 of that Schedule (reference or application with respect

to licensing by licensing body); (g) paragraph 15 of that Schedule (application to settle royalty for certain

lending); (h) paragraph 17 of that Schedule (application to settle terms of licence available

as of right).

(2) The provisions of Chapter VIII of Part I (general provisions relating to the Copyright Tribunal) apply in relation to the Tribunal when exercising any jurisdiction under [F479this Chapter].

(3) Provision shall be made by rules under section 150 prohibiting the Tribunal from entertaining a reference under paragraph 3, 4 or 5 of Schedule 2A (reference of licensing scheme) by a representative organisation unless the Tribunal is satisfied that the organisation is reasonably representative of the class of persons which it claims to represent.]

Annotations:

Editorial Information X63 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F478 S. 205B inserted (1.12.1996) by S.I. 1996/2967, reg. 24 (with Pt. III) F479 Words in s. 205B(1)(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F480 S. 205B(cc) inserted (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 4 (with s. 43(6)); S.I. 1996/2120,

art. 4(1), Sch. 1

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[F481CHAPTER 3

MORAL RIGHTS

Annotations:

Amendments (Textual) F481 Ss. 205C-205N and cross-headings inserted (1.2 2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), art. 6 (with reg. 8) (which inserted provisions accordingly become Pt. 2 Ch. 3 (1.2.2006) by virtue of S.I. 2006/18, art. 4(6) (with reg. 8))

Right to be identified as performer

205C Right to be identified as performer

(1) Whenever a person— (a) produces or puts on a qualifying performance that is given in public, (b) broadcasts live a qualifying performance, (c) communicates to the public a sound recording of a qualifying performance, or (d) issues to the public copies of such a recording,

the performer has the right to be identified as such.

(2) The right of the performer under this section is— (a) in the case of a performance that is given in public, to be identified in any

programme accompanying the performance or in some other manner likely to bring his identity to the notice of a person seeing or hearing the performance,

(b) in the case of a performance that is broadcast, to be identified in a manner likely to bring his identity to the notice of a person seeing or hearing the broadcast,

(c) in the case of a sound recording that is communicated to the public, to be identified in a manner likely to bring his identity to the notice of a person hearing the communication,

(d) in the case of a sound recording that is issued to the public, to be identified in or on each copy or, if that is not appropriate, in some other manner likely to bring his identity to the notice of a person acquiring a copy,

or (in any of the above cases) to be identified in such other manner as may be agreed between the performer and the person mentioned in subsection (1).

(3) The right conferred by this section in relation to a performance given by a group (or so much of a performance as is given by a group) is not infringed—

(a) in a case falling within paragraph (a), (b) or (c) of subsection (2), or (b) in a case falling within paragraph (d) of that subsection in which it is not

reasonably practicable for each member of the group to be identified, if the group itself is identified as specified in subsection (2).

(4) In this section “group” means two or more performers who have a particular name by which they may be identified collectively.

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(5) If the assertion under section 205D specifies a pseudonym, initials or some other particular form of identification, that form shall be used; otherwise any reasonable form of identification may be used.

(6) This section has effect subject to section 205E (exceptions to right).

205D Requirement that right be asserted

(1) A person does not infringe the right conferred by section 205C (right to be identified as performer) by doing any of the acts mentioned in that section unless the right has been asserted in accordance with the following provisions so as to bind him in relation to that act.

(2) The right may be asserted generally, or in relation to any specified act or description of acts—

(a) by instrument in writing signed by or on behalf of the performer, or (b) on an assignment of a performer's property rights, by including in the

instrument effecting the assignment a statement that the performer asserts in relation to the performance his right to be identified.

(3) The persons bound by an assertion of the right under subsection (2) are— (a) in the case of an assertion under subsection (2)(a), anyone to whose notice

the assertion is brought; (b) in the case of an assertion under subsection (2)(b), the assignee and anyone

claiming through him, whether or not he has notice of the assertion.

(4) In an action for infringement of the right the court shall, in considering remedies, take into account any delay in asserting the right.

205E Exceptions to right

(1) The right conferred by section 205C (right to be identified as performer) is subject to the following exceptions.

(2) The right does not apply where it is not reasonably practicable to identify the performer (or, where identification of a group is permitted by virtue of section 205C(3), the group).

(3) The right does not apply in relation to any performance given for the purposes of reporting current events.

(4) The right does not apply in relation to any performance given for the purposes of advertising any goods or services.

(5) The right is not infringed by an act which by virtue of any of the following provisions of Schedule 2 would not infringe any of the rights conferred by Chapter 2—

(a) paragraph 2(1A) (news reporting); (b) paragraph 3 (incidental inclusion of a performance or recording); (c) paragraph 4(2) (things done for the purposes of examination); (d) paragraph 8 (parliamentary and judicial proceedings); (e) paragraph 9 (Royal Commissions and statutory inquiries).

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Right to object to derogatory treatment

205F Right to object to derogatory treatment of performance

(1) The performer of a qualifying performance has a right which is infringed if— (a) the performance is broadcast live, or (b) by means of a sound recording the performance is played in public or

communicated to the public, with any distortion, mutilation or other modification that is prejudicial to the reputation of the performer.

(2) This section has effect subject to section 205G (exceptions to right).

205G Exceptions to right

(1) The right conferred by section 205F (right to object to derogatory treatment of performance) is subject to the following exceptions.

(2) The right does not apply in relation to any performance given for the purposes of reporting current events.

(3) The right is not infringed by modifications made to a performance which are consistent with normal editorial or production practice.

(4) Subject to subsection (5), the right is not infringed by anything done for the purpose of—

(a) avoiding the commission of an offence, (b) complying with a duty imposed by or under an enactment, or (c) in the case of the British Broadcasting Corporation, avoiding the inclusion in

a programme broadcast by them of anything which offends against good taste or decency or which is likely to encourage or incite crime or lead to disorder or to be offensive to public feeling.

(5) Where— (a) the performer is identified in a manner likely to bring his identity to the

notice of a person seeing or hearing the performance as modified by the act in question; or

(b) he has previously been identified in or on copies of a sound recording issued to the public,

subsection (4) applies only if there is sufficient disclaimer.

(6) In subsection (5) “sufficient disclaimer”, in relation to an act capable of infringing the right, means a clear and reasonably prominent indication—

(a) given in a manner likely to bring it to the notice of a person seeing or hearing the performance as modified by the act in question, and

(b) if the performer is identified at the time of the act, appearing along with the identification,

that the modifications were made without the performer's consent.

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205H Infringement of right by possessing or dealing with infringing article

(1) The right conferred by section 205F (right to object to derogatory treatment of performance) is also infringed by a person who—

(a) possesses in the course of business, or (b) sells or lets for hire, or offers or exposes for sale or hire, or (c) distributes,

an article which is, and which he knows or has reason to believe is, an infringing article.

(2) An “infringing article” means a sound recording of a qualifying performance with any distortion, mutilation or other modification that is prejudicial to the reputation of the performer.

Supplementary

205I Duration of rights

(1) A performer's rights under this Chapter in relation to a performance subsist so long as that performer's rights under Chapter 2 subsist in relation to the performance.

(2) In subsection (1) “performer's rights” includes rights of a performer that are vested in a successor of his.

205J Consent and waiver of rights

(1) It is not an infringement of the rights conferred by this Chapter to do any act to which consent has been given by or on behalf of the person entitled to the right.

(2) Any of those rights may be waived by instrument in writing signed by or on behalf of the person giving up the right.

(3) A waiver— (a) may relate to a specific performance, to performances of a specified

description or to performances generally, and may relate to existing or future performances, and

(b) may be conditional or unconditional and may be expressed to be subject to revocation,

and if made in favour of the owner or prospective owner of a performer's property rights in the performance or performances to which it relates, it shall be presumed to extend to his licensees and successors in title unless a contrary intention is expressed.

205K Application of provisions to parts of performances

(1) The right conferred by section 205C (right to be identified as performer) applies in relation to the whole or any substantial part of a performance.

(2) The right conferred by section 205F (right to object to derogatory treatment of performance) applies in relation to the whole or any part of a performance.

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205L Moral rights not assignable

The rights conferred by this Chapter are not assignable.

205M Transmission of moral rights on death

(1) On the death of a person entitled to a right conferred by this Chapter— (a) the right passes to such person as he may by testamentary disposition

specifically direct, (b) if there is no such direction but the performer's property rights in respect of the

performance in question form part of his estate, the right passes to the person to whom the property rights pass,

(c) if or to the extent that the right does not pass under paragraph (a) or (b) it is exercisable by his personal representatives.

(2) Where a performer's property rights pass in part to one person and in part to another, as for example where a bequest is limited so as to apply—

(a) to one or more, but not all, of the things to which the owner has the right to consent, or

(b) to part, but not the whole, of the period for which the rights subsist, any right which by virtue of subsection (1) passes with the performer's property rights is correspondingly divided.

(3) Where by virtue of subsection (1)(a) or (1)(b) a right becomes exercisable by more than one person—

(a) it is, in the case of the right conferred by section 205F (right to object to derogatory treatment of performance), a right exercisable by each of them and is satisfied in relation to any of them if he consents to the treatment or act in question, and

(b) any waiver of the right in accordance with section 205J by one of them does not affect the rights of the others.

(4) A consent or waiver previously given or made binds any person to whom a right passes by virtue of subsection (1).

(5) Any damages recovered by personal representatives by virtue of this section in respect of an infringement after a person's death shall devolve as part of his estate as if the right of action had subsisted and been vested in him immediately before his death.

205N Remedies for infringement of moral rights

(1) An infringement of a right conferred by this Chapter is actionable as a breach of statutory duty owed to the person entitled to the right.

(2) Where— (a) there is an infringement of a right conferred by this Chapter, (b) a person falsely claiming to act on behalf of a performer consented to the

relevant conduct or purported to waive the right, and (c) there would have been no infringement if he had been so acting,

that person shall be liable, jointly and severally with any person liable in respect of the infringement by virtue of subsection (1), as if he himself had infringed the right.

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(3) Where proceedings for infringement of the right conferred on a performer by this Chapter, it shall be a defence to prove—

(a) that a person claiming to act on behalf of the performer consented to the defendant's conduct or purported to waive the right, and

(b) that the defendant reasonably believed that the person was acting on behalf of the performer.

(4) In proceedings for infringement of the right conferred by section 205F the court may, if it thinks it an adequate remedy in the circumstances, grant an injunction on terms prohibiting the doing of any act unless a disclaimer is made, in such terms and in such manner as may be approved by the court, dissociating the performer from the broadcast or sound recording of the performance.]

[F482CHAPTER 4

QUALIFICATION FOR PROTECTION, EXTENT AND INTERPRETATION

Annotations:

Amendments (Textual) F482 Ss. 206-212 become Pt. 2 Ch. 4 (1.2.2006) by virtue of The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 4(7) (with reg. 8)

X64 Qualification for protection and extent

Annotations:

Editorial Information X64 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

X65206 Qualifying countries, individuals and persons.

(1) In this Part— “qualifying country” means—

(a) the United Kingdom, (b) another member State of the [F483European Union], or (c) to the extent that an Order under section 208 so provides, a country designated

under that section as enjoying reciprocal protection; “qualifying individual” means a citizen or subject of, or an individual resident in, a qualifying country; and “qualifying person” means a qualifying individual or a body corporate or other body having legal personality which—

(a) is formed under the law of a part of the United Kingdom or another qualifying country, and

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(b) has in any qualifying country a place of business at which substantial business activity is carried on.

(2) The reference in the definition of “qualifying individual” to a person’s being a citizen or subject of a qualifying country shall be construed—

(a) in relation to the United Kingdom, as a reference to his being a British citizen, and

(b) in relation to a colony of the United Kingdom, as a reference to his being a British Dependent Territories’ citizen by connection with that colony.

(3) In determining for the purpose of the definition of “qualifying person” whether substantial business activity is carried on at a place of business in any country, no account shall be taken of dealings in goods which are at all material times outside that country.

Annotations:

Editorial Information X65 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F483 Words substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 4

X66207 Countries to which this Part extends.

This Part extends to England and Wales, Scotland and Northern Ireland.

Annotations:

Editorial Information X66 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

X67208 Countries enjoying reciprocal protection.

(1) Her Majesty may by Order in Council designate as enjoying reciprocal protection under this Part—

(a) a Convention country, or (b) a country as to which Her Majesty is satisfied that provision has been or will

be made under its law giving adequate protection for British performances.

(2) A “Convention country” means a country which is a party to a Convention relating to performers’ rights to which the United Kingdom is also a party.

(3) A “British performance” means a performance—

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(a) given by an individual who is a British citizen or resident in the United Kingdom, or

(b) taking place in the United Kingdom.

(4) If the law of that country provides adequate protection only for certain descriptions of performance, an Order under subsection (1)(b) designating that country shall contain provision limiting to a corresponding extent the protection afforded by this Part in relation to performances connected with that country.

(5) The power conferred by subsection (1)(b) is exercisable in relation to any of the Channel Islands, the Isle of Man or any colony of the United Kingdom, as in relation to a foreign country.

(6) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Annotations:

Editorial Information X67 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

X68209 Territorial waters and the continental shelf.

(1) For the purposes of this Part the territorial waters of the United Kingdom shall be treated as part of the United Kingdom.

(3) The United Kingdom sector of the continental shelf means the areas designated by order under section 1(7) of the M27Continental Shelf Act 1964.

Annotations:

Editorial Information X68 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Marginal Citations M27 1964 c. 29.

X69210 British ships, aircraft and hovercraft.

(1) This Part applies to things done on a British ship, aircraft or hovercraft as it applies to things done in the United Kingdom.

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(2) In this section— “British ship” means a ship which is a British ship for the purposes of the

[F484Merchant Shipping Act 1995] otherwise than by virtue of registration in a country outside the United Kingdom; and

“British aircraft” and “British hovercraft” mean an aircraft or hovercraft registered in the United Kingdom.

Annotations:

Editorial Information X69 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F484 Words in s. 210(2) substituted (1.1.1996) by 1995 c. 21, ss. 314(2), 316(2), Sch. 13 para. 84(b) (with

s. 312(1))

210A Requirement of signature: application in relation to body corporate

(1) The requirement in the following provisions that an instrument be signed by or on behalf of a person is also satisfied in the case of a body corporate by the affixing of its seal—

section 191B(3) (assignment of performer's property rights); section 191C(1) (assignment of future performer's property rights); section 191D(1) (grant of exclusive licence).

(2) The requirement in the following provisions that an instrument be signed by a person is also satisfied in the case of a body corporate by signature on behalf of the body or by the affixing of its seal—

section 205D(2)(a) (assertion of performer's moral rights); section 205J(2) (waiver of performer's moral rights).]

Annotations:

Amendments (Textual) F485 S. 210A inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 7 (with reg. 8)

X70 Interpretation

Annotations:

Editorial Information X70 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on

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X71211 Expressions having same meaning as in copyright provisions.

(1) The following expressions have the same meaning in this Part as in Part I (copyright) —

[F486assignment (in Scotland),] broadcast, business, F487. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F488. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [F489communication to the public,] country, defendant (in Scotland), delivery up (in Scotland), [F490the EEA,] [F490EEA state,] film, [F491injunction (in Scotland)] literary work, published, F492. . . [F493signed,] [F494sound recording, and] [F495wireless broadcast.]

(2) [F496 The provisions of— (a) section 5B(2) and (3) (supplementary provisions relating to films), and (b) section 6(3) to (5A) and section 19(4) (supplementary provisions relating to

broadcasting), apply] for the purposes of this Part, and in relation to an infringement of the rights conferred by this Part, as they apply for the purposes of Part I and in relation to an infringement of copyright.

Annotations:

Editorial Information X71 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F486 S. 211(1): entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 6(2) (with reg. 8) F487 S. 211(1): entry repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

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F488 S. 211(1): entry repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

F489 S. 211(1): entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(5)(a)(i) (with regs. 31-40)

F490 S. 211(1): entries relating to "the EEA," and "EEA state," substituted (29.4.2006) for entry relating to "EEA national," by The Intellectual Property (Enforcement, etc.) Regulations 2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 12

F491 S. 211(1): entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(5)(a)(i) (with regs. 31-40)

F492 Word in s. 211(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

F493 S. 211(1): entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 6(2) (with reg. 8)

F494 S. 211(1): entry substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), {Sch. 1para. 15(5)(a)(ii)} (with regs. 31-40)

F495 S. 211(1): entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(5)(a)(i) (with regs. 31-40)

F496 Words in s. 211(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 6(3) (with reg. 8)

X72212 Index of defined expressions.

The following Table shows provisions defining or otherwise explaining expressions used in this Part (other than provisions defining or explaining an expression used only in the same section)—

[F497assignment (in Scotland) section 211(1) (and section 177);] broadcast (and related expressions) section 211 (and section 6) business section 211(1) (and section 178) F498. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [F499communication to the public section 211(1) (and section 20)] [F500consent of performer (in relation to performer’s property rights)]

[F501section 191A(2)]

country section 211(1) (and section 178) defendant (in Scotland) section 211(1) (and section 177) delivery up (in Scotland) section 211(1) (and section 177) [F502distribution right] [F503section 182B(5)] [F504the EEA and EEA state] [F505section 211(1) (and section 172A)] exclusive recording contract section 185(1) film section 211(1) (and [F506section 5B]) [F507group section 205C(4);] illicit recording section 197 [F508injunction (in Scotland) section 211(1) (and section 177)] [F509issue to the public section 182B;]

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literary work section 211(1) (and section 3(1)) [F510lending right] [F511section 182C(7)] [F512making available right section 182CA] performance section 180(2) [F513performer’s non-property rights] [F514section 192A(1)] [F515performer’s property rights] [F516section 191A(1)] published section 211(1) (and section 175) qualifying country section 206(1) qualifying individual section 206(1) and (2) qualifying performance section 181 qualifying person section 206(1) and (3) recording (of a performance) section 180(2) recording rights (person having) section 185(2) and (3) [F517rental right)] [F518section 182C(7)] [F519reproduction right] [F520section 182A(3)] [F521rights owner (in relation to performer’s property rights)]

[F522 section 191A(3) and (4).]

[F523signed section 211(1) (and section 176);] sound recording section 211(1) (and [F524section 5A]). [F525wireless broadcast section 211(1) (and section 178).]]

Annotations:

Editorial Information X72 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Amendments (Textual) F497 S. 212: entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 7 (with reg. 8) F498 S. 212: entry repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F499 S. 212: entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 15(6) (with regs. 31-40) F500 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F501 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F502 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F503 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F504 S. 212: words in entry substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.)

Regulations 2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 13 F505 Words in s. 212 inserted (1.1.1996) by S.I. 1995/3297, reg. 11(4) (with Pt. III)

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F506 Words in s. 212 substituted (1.1.1996) by S.I. 1995/3297, reg. 9(6)(a) (with Pt. III) F507 S. 212: entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 7 (with reg. 8) F508 S. 212: entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 15(6) (with regs. 31-40) F509 S. 212: entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 7 (with reg. 8) F510 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F511 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F512 S. 212: entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 15(6) (with regs. 31-40) F513 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F514 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F515 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F516 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F517 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F518 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F519 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F520 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F521 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F522 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F523 S. 212: entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 7 (with reg. 8) F524 Words in s. 212 substituted (1.1.1996) by S.I. 1995/3297, reg. 9(6)(b) (with Pt. III) F525 S. 212: entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 7 (with reg. 8)

PART III

DESIGN RIGHT

Annotations:

Modifications etc. (not altering text) C101 Pt. III (ss. 213–264) modified by S.I. 1989/1100, art. 3

CHAPTER I

DESIGN RIGHT IN ORIGINAL DESIGNS

Introductory

213 Design right.

(1) Design right is a property right which subsists in accordance with this Part in an original design.

(2) In this Part “design” means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article.

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(3) Design right does not subsist in— (a) a method or principle of construction, (b) features of shape or configuration of an article which—

(i) enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function, or

(ii) are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part, or

(4) A design is not “original” for the purposes of this Part if it is commonplace in the design field in question at the time of its creation.

(5) Design right subsists in a design only if the design qualifies for design right protection by reference to—

(a) the designer or the person by whom the design was commissioned or the designer employed (see sections 218 and 219), or

(b) the person by whom and country in which articles made to the design were first marketed (see section 220),

or in accordance with any Order under section 221 (power to make further provision with respect to qualification).

[F526(5A) Design right does not subsist in a design which consists of or contains a controlled representation within the meaning of the Olympic Symbol etc. (Protection) Act 1995.]

(6) Design right does not subsist unless and until the design has been recorded in a design document or an article has been made to the design.

(7) Design right does not subsist in a design which was so recorded, or to which an article was made, before the commencement of this Part.

Annotations:

Amendments (Textual) F526 S. 213(5A) inserted (20.9.1995 with effect as mentioned in s. 14(2)(3) of the amending Act) by 1995

c. 32, s. 14(1); S.I. 1995/2472, art. 2

214 The designer.

(1) In this Part the “designer”, in relation to a design, means the person who creates it.

(2) In the case of a computer-generated design the person by whom the arrangements necessary for the creation of the design are undertaken shall be taken to be the designer.

215 Ownership of design right.

(1) The designer is the first owner of any design right in a design which is not created in pursuance of a commission or in the course of employment.

(2) Where a design is created in pursuance of a commission, the person commissioning the design is the first owner of any design right in it.

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(3) Where, in a case not falling within subsection (2) a design is created by an employee in the course of his employment, his employer is the first owner of any design right in the design.

(4) If a design qualifies for design right protection by virtue of section 220 (qualification by reference to first marketing of articles made to the design), the above rules do not apply and the person by whom the articles in question are marketed is the first owner of the design right.

216 Duration of design right.

(1) Design right expires— (a) fifteen years from the end of the calendar year in which the design was first

recorded in a design document or an article was first made to the design, whichever first occurred, or

(b) if articles made to the design are made available for sale or hire within five years from the end of that calendar year, ten years from the end of the calendar year in which that first occurred.

(2) The reference in subsection (1) to articles being made available for sale or hire is to their being made so available anywhere in the world by or with the licence of the design right owner.

Qualification for design right protection

217 Qualifying individuals and qualifying persons.

(1) In this Part— “qualifying individual” means a citizen or subject of, or an individual

habitually resident in, a qualifying country; and “qualifying person” means a qualifying individual or a body corporate or

other body having legal personality which— (a) is formed under the law of a part of the United Kingdom or another qualifying

country, and (b) has in any qualifying country a place of business at which substantial business

activity is carried on.

(2) References in this Part to a qualifying person include the Crown and the government of any other qualifying country.

(3) In this section “qualifying country” means— (a) the United Kingdom, (b) a country to which this Part extends by virtue of an Order under section 255, (c) another member State of the [F527European Union], or (d) to the extent that an Order under section 256 so provides, a country designated

under that section as enjoying reciprocal protection.

(4) The reference in the definition of “qualifying individual” to a person’s being a citizen or subject of a qualifying country shall be construed—

(a) in relation to the United Kingdom, as a reference to his being a British citizen, and

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(b) in relation to a colony of the United Kingdom, as a reference to his being a British Dependent Territories’ citizen by connection with that colony.

(5) In determining for the purpose of the definition of “qualifying person” whether substantial business activity is carried on at a place of business in any country, no account shall be taken of dealings in goods which are at all material times outside that country.

Annotations:

Amendments (Textual) F527 Words substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 4

218 Qualification by reference to designer.

(1) This section applies to a design which is not created in pursuance of a commission or in the course of employment.

(2) A design to which this section applies qualifies for design right protection if the designer is a qualifying individual or, in the case of a computer-generated design, a qualifying person.

(3) A joint design to which this section applies qualifies for design right protection if any of the designers is a qualifying individual or, as the case may be, a qualifying person.

(4) Where a joint design qualifies for design right protection under this section, only those designers who are qualifying individuals or qualifying persons are entitled to design right under section 215(1) (first ownership of design right: entitlement of designer).

219 Qualification by reference to commissioner or employer.

(1) A design qualifies for design right protection if it is created in pursuance of a commission from, or in the course of employment with, a qualifying person.

(2) In the case of a joint commission or joint employment a design qualifies for design right protection if any of the commissioners or employers is a qualifying person.

(3) Where a design which is jointly commissioned or created in the course of joint employment qualifies for design right protection under this section, only those commissioners or employers who are qualifying persons are entitled to design right under section 215(2) or (3) (first ownership of design right: entitlement of commissioner or employer).

220 Qualification by reference to first marketing.

(1) A design which does not qualify for design right protection under section 218 or 219 (qualification by reference to designer, commissioner or employer) qualifies for design right protection if the first marketing of articles made to the design—

(a) is by a qualifying person who is exclusively authorised to put such articles on the market in the United Kingdom, and

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(b) takes place in the United Kingdom, another country to which this Part extends by virtue of an Order under section 255, or another member State of the [F528European Union].

(2) If the first marketing of articles made to the design is done jointly by two or more persons, the design qualifies for design right protection if any of those persons meets the requirements specified in subsection (1)(a).

(3) In such a case only the persons who meet those requirements are entitled to design right under section 215(4) (first ownership of design right: entitlement of first marketer of articles made to the design).

(4) In subsection (1)(a) “exclusively authorised” refers— (a) to authorisation by the person who would have been first owner of design

right as designer, commissioner of the design or employer of the designer if he had been a qualifying person, or by a person lawfully claiming under such a person, and

(b) to exclusivity capable of being enforced by legal proceedings in the United Kingdom.

Annotations:

Amendments (Textual) F528 Words substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 4

221 Power to make further provision as to qualification.

(1) Her Majesty may, with a view to fulfilling an international obligation of the United Kingdom, by Order in Council provide that a design qualifies for design right protection if such requirements as are specified in the Order are met.

(2) An Order may make different provision for different descriptions of design or article; and may make such consequential modifications of the operation of sections 215 (ownership of design right) and sections 218 to 220 (other means of qualification) as appear to Her Majesty to be appropriate.

(3) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Dealings with design right

222 Assignment and licences.

(1) Design right is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.

(2) An assignment or other transmission of design right may be partial, that is, limited so as to apply—

(a) to one or more, but not all, of the things the design right owner has the exclusive right to do;

(b) to part, but not the whole, of the period for which the right is to subsist.

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(3) An assignment of design right is not effective unless it is in writing signed by or on behalf of the assignor.

(4) A licence granted by the owner of design right is binding on every successor in title to his interest in the right, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Part to doing anything with, or without, the licence of the design right owner shall be construed accordingly.

223 Prospective ownership of design right.

(1) Where by an agreement made in relation to future design right, and signed by or on behalf of the prospective owner of the design right, the prospective owner purports to assign the future design right (wholly or partially) to another person, then if, on the right coming into existence, the assignee or another person claiming under him would be entitled as against all other persons to require the right to be vested in him, the right shall vest in him by virtue of this section.

(2) In this section— “future design right” means design right which will or may come into

existence in respect of a future design or class of designs or on the occurrence of a future event; and

“prospective owner” shall be construed accordingly, and includes a person who is prospectively entitled to design right by virtue of such an agreement as is mentioned in subsection (1).

(3) A licence granted by a prospective owner of design right is binding on every successor in title to his interest (or prospective interest) in the right, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Part to doing anything with, or without, the licence of the design right owner shall be construed accordingly.

224 Assignment of right in registered design presumed to carry with it design right.

Where a design consisting of a design in which design right subsists is registered under the M28Registered Designs Act 1949 and the proprietor of the registered design is also the design right owner, an assignment of the right in the registered design shall be taken to be also an assignment of the design right, unless a contrary intention appears.

Annotations:

Marginal Citations M28 1949 c. 88.

225 Exclusive licences.

(1) In this Part an “exclusive licence” means a licence in writing signed by or on behalf of the design right owner authorising the licensee to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the design right owner.

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(2) The licensee under an exclusive licence has the same rights against any successor in title who is bound by the licence as he has against the person granting the licence.

CHAPTER II

RIGHTS OF DESIGN RIGHT OWNER AND REMEDIES

Infringement of design right

226 Primary infringement of design right.

(1) The owner of design right in a design has the exclusive right to reproduce the design for commercial purposes—

(a) by making articles to that design, or (b) by making a design document recording the design for the purpose of enabling

such articles to be made.

(2) Reproduction of a design by making articles to the design means copying the design so as to produce articles exactly or substantially to that design, and references in this Part to making articles to a design shall be construed accordingly.

(3) Design right is infringed by a person who without the licence of the design right owner does, or authorises another to do, anything which by virtue of this section is the exclusive right of the design right owner.

(4) For the purposes of this section reproduction may be direct or indirect, and it is immaterial whether any intervening acts themselves infringe the design right.

(5) This section has effect subject to the provisions of Chapter III (exceptions to rights of design right owner).

227 Secondary infringement: importing or dealing with infringing article.

(1) Design right is infringed by a person who, without the licence of the design right owner—

(a) imports into the United Kingdom for commercial purposes, or (b) has in his possession for commercial purposes, or (c) sells, lets for hire, or offers or exposes for sale or hire, in the course of a

business, an article which is, and which he knows or has reason to believe is, an infringing article.

(2) This section has effect subject to the provisions of Chapter III (exceptions to rights of design right owner).

228 Meaning of “infringing article”.

(1) In this Part “infringing article”, in relation to a design, shall be construed in accordance with this section.

(2) An article is an infringing article if its making to that design was an infringement of design right in the design.

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(3) An article is also an infringing article if— (a) it has been or is proposed to be imported into the United Kingdom, and (b) its making to that design in the United Kingdom would have been an

infringement of design right in the design or a breach of an exclusive licence agreement relating to the design.

(4) Where it is shown that an article is made to a design in which design right subsists or has subsisted at any time, it shall be presumed until the contrary is proved that the article was made at a time when design right subsisted.

(5) Nothing in subsection (3) shall be construed as applying to an article which may lawfully be imported into the United Kingdom by virtue of any enforceable [F529EU] right within the meaning of section 2(1) of the M29European Communities Act 1972.

(6) The expression “infringing article” does not include a design document, notwithstanding that its making was or would have been an infringement of design right.

Annotations:

Amendments (Textual) F529 Word substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 6

Marginal Citations M29 1972 c. 68.

Remedies for infringement

229 Rights and remedies of design right owner.

(1) An infringement of design right is actionable by the design right owner.

(2) In an action for infringement of design right all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.

(3) The court may in an action for infringement of design right, having regard to all the circumstances and in particular to—

(a) the flagrancy of the infringement, and (b) any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.

(4) This section has effect subject to section 233 (innocent infringement).

230 Order for delivery up.

(1) Where a person— (a) has in his possession, custody or control for commercial purposes an

infringing article, or

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(b) has in his possession, custody or control anything specifically designed or adapted for making articles to a particular design, knowing or having reason to believe that it has been or is to be used to make an infringing article,

the owner of the design right in the design in question may apply to the court for an order that the infringing article or other thing be delivered up to him or to such other person as the court may direct.

(2) An application shall not be made after the end of the period specified in the following provisions of this section; and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section 231 (order as to disposal of infringing article, &c.).

(3) An application for an order under this section may not be made after the end of the period of six years from the date on which the article or thing in question was made, subject to subsection (4).

(4) If during the whole or any part of that period the design right owner— (a) is under a disability, or (b) is prevented by fraud or concealment from discovering the facts entitling him

(5) In subsection (4) “disability”— (a) in England and Wales, has the same meaning as in the M30Limitation Act 1980; (b) in Scotland, means legal disability within the meaning of the M31Prescription

and Limitation (Scotland) Act 1973; (c) in Northern Ireland, has the same meaning as in the M32Statute of Limitations

(Northern Ireland) 1958.

(6) A person to whom an infringing article or other thing is delivered up in pursuance of an order under this section shall, if an order under section 231 is not made, retain it pending the making of an order, or the decision not to make an order, under that section.

(7) Nothing in this section affects any other power of the court.

Annotations:

Modifications etc. (not altering text) C102 S. 230 extended by S.I.1991/724, art. 2(1)(n)

Marginal Citations M30 1980 c. 58. M31 1973 c. 52. M32 1958 c. 10 (N.I.).

231 Order as to disposal of infringing articles, &c.

(1) An application may be made to the court for an order that an infringing article or other thing delivered up in pursuance of an order under section 230 shall be—

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(a) forfeited to the design right owner, or (b) destroyed or otherwise dealt with as the court may think fit,

or for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the court shall consider whether other remedies available in an action for infringement of design right would be adequate to compensate the design right owner and to protect his interests.

(3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the article or other thing, and any such person is entitled—

(a) to appear in proceedings for an order under this section, whether or not he was served with notice, and

(4) Where there is more than one person interested in an article or other thing, the court shall make such order as it thinks just and may (in particular) direct that the thing be sold, or otherwise dealt with, and the proceeds divided.

(5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the article or other thing was before being delivered up F530. . . is entitled to its return.

(6) References in this section to a person having an interest in an article or other thing include any person in whose favour an order could be made in respect of it

[F531(a) under this section or under section 114 or 204 of this Act; (b) under section 24D of the Registered Designs Act 1949; (c) under section 19 of Trade Marks Act 1994 (including that section as

applied by regulation 4 of the Community Trade Mark Regulations 2006 (SI 2006/1027)); or

(d) under regulation 1C of the Community Design Regulations 2005 (SI 2005/2339).]

Annotations:

Amendments (Textual) F530 Words in s. 231(5) repealed (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations

2006 (S.I. 2006/1028), reg. 2(4), Sch. 4 F531 Words in s. 231(6) substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.)

Regulations 2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 14

Modifications etc. (not altering text) C103 S. 231 extended by S.I. 1991/724, art. 2(1)(n)

232 Jurisdiction of county court and sheriff court.

(1) In England, Wales and Northern Ireland a county court may entertain proceedings under—

section 230 (order for delivery up of infringing article, &c.),

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section 231 (order as to disposal of infringing article, &c.), or section 235(5) (application by exclusive licensee having concurrent rights),

[F532save that, in Northern Ireland, a county court may entertain such proceedings only]where the value of the infringing articles and other things in question does not exceed the county court limit for actions in tort.

(2) In Scotland proceedings for an order under any of those provisions may be brought in the sheriff court.

(3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.

Annotations:

Amendments (Textual) F532 Words in s. 232(1) inserted by S.I. 1991/724, art. 2(8), Schedule PartI

233 Innocent infringement.

(1) Where in an action for infringement of design right brought by virtue of section 226 (primary infringement) it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that design right subsisted in the design to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2) Where in an action for infringement of design right brought by virtue of section 227 (secondary infringement) a defendant shows that the infringing article was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable royalty in respect of the act complained of.

(3) In subsection (2) “innocently acquired” means that the person acquiring the article did not know and had no reason to believe that it was an infringing article.

234 Rights and remedies of exclusive licensee.

(1) An exclusive licensee has, except against the design right owner, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.

(2) His rights and remedies are concurrent with those of the design right owner; and references in the relevant provisions of this Part to the design right owner shall be construed accordingly.

235 Exercise of concurrent rights.

(1) Where an action for infringement of design right brought by the design right owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the design right owner or, as the case may be,

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the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as a plaintiff or added as a defendant.

(2) A design right owner or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings.

(3) The above provisions do not affect the granting of interlocutory relief on the application of the design right owner or an exclusive licensee.

(4) Where an action for infringement of design right is brought which relates (wholly or partly) to an infringement in respect of which the design right owner and an exclusive licensee have concurrent rights of action—

(a) the court shall, in assessing damages, take into account— (i) the terms of the licence, and

(ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement;

(b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and

(c) the court shall if an account of profits is directed apportion the profits between them as the court considers just, subject to any agreement between them;

and these provisions apply whether or not the design right owner and the exclusive licensee are both parties to the action.

(5) The design right owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 230 (order for delivery up of infringing article, &c.); and the court may on the application of the licensee make such order under that section as it thinks fit having regard to the terms of the licence.

Annotations:

Modifications etc. (not altering text) C104 S. 235(5) extended by S.I. 1991/724, art. 2(1)(n)

CHAPTER III

EXCEPTIONS TO RIGHTS OF DESIGN RIGHT OWNERS

Infringement of copyright

236 Infringement of copyright.

Where copyright subsists in a work which consists of or includes a design in which design right subsists, it is not an infringement of design right in the design to do anything which is an infringement of the copyright in that work.

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Availability of licences of right

237 Licences available in last five years of design right.

(1) Any person is entitled as of right to a licence to do in the last five years of the design right term anything which would otherwise infringe the design right.

(2) The terms of the licence shall, in default of agreement, be settled by the comptroller.

(3) The Secretary of State may if it appears to him necessary in order to— (a) comply with an international obligation of the United Kingdom, or (b) secure or maintain reciprocal protection for British designs in other countries,

by order exclude from the operation of subsection (1) designs of a description specified in the order or designs applied to articles of a description so specified.

(4) An order shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

238 Powers exercisable for protection of the public interest.

[F533(1) Subsection (1A) applies where whatever needs to be remedied, mitigated or prevented by the Secretary of State, the Competition Commission or (as the case may be) the Office of Fair Trading under section 12(5) of the Competition Act 1980 or section 41(2), 55(2), 66(6), 75(2), 83(2), 138(2), 147(2) or 160(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following references to the Commission in connection with public bodies and certain other persons, mergers or market investigations etc.) consists of or includes—

(a) conditions in licences granted by a design right owner restricting the use of the design by the licensee or the right of the design right owner to grant other licences, or

(b) a refusal of a design right owner to grant licences on reasonable terms.

(3) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the comptroller.

Annotations:

Amendments (Textual) F533 S. 238(1)(1A)(2) substituted (20.6.2003 for certain purposes and 29.12.2004 otherwise) for s. 238(1)

(2) by 2002 c. 40, ss. 278(1), 279, Sch. 25 para. 18(4); S.I. 2003/1397, arts. 2, 3(1), Sch. (with arts. 4-12); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

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Modifications etc. (not altering text) C105 S. 238(1) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order

2003 (S.I. 2003/1592), Sch. 4 para. 7(2)(a) C106 S. 238(2) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order

2003 (S.I. 2003/1592), Sch. 4 para. 7(2)(a)

239 Undertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of design right in a design in respect of which a licence is available as of right under section 237 or 238 the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the comptroller under that section—

(a) no injunction shall be granted against him, (b) no order for delivery up shall be made under section 230, and (c) the amount recoverable against him by way of damages or on an account of

profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.

(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.

Crown use of designs

240 Crown use of designs.

(1) A government department, or a person authorised in writing by a government department, may without the licence of the design right owner—

(a) do anything for the purpose of supplying articles for the services of the Crown, or

(b) dispose of articles no longer required for the services of the Crown; and nothing done by virtue of this section infringes the design right.

(2) References in this Part to “the services of the Crown” are to— (a) the defence of the realm, (b) foreign defence purposes, and (c) health service purposes.

(3) The reference to the supply of articles for “foreign defence purposes” is to their supply —

(a) for the defence of a country outside the realm in pursuance of an agreement or arrangement to which the government of that country and Her Majesty’s Government in the United Kingdom are parties; or

(b) for use by armed forces operating in pursuance of a resolution of the United Nations or one of its organs.

(4) The reference to the supply of articles for “health service purposes” are to their supply for the purpose of providing—

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[F534(za) primary medical services or primary dental services under [F535the National Health Service Act 2006 or the National Health Service (Wales) Act 2006,][F536or primary medical services under Part 1 of the National Health Service (Scotland) Act 1978]]

[F537(a) pharmaceutical services, general medical services or general dental services under— [F538(i) Chapter 1 of Part 7 of the National Health Service Act 2006, or

Chapter 1 of Part 7 of the National Health Service (Wales) Act 2006 (in the case of pharmaceutical services),]

(ii) Part II of the National Health Service (Scotland) Act 1978 [F539(in the case of pharmaceutical services or general dental services)], or

(iii) the corresponding provisions of the law in force in Northern Ireland; or

(b) personal medical services or personal dental services in accordance with arrangements made under—

(i) F540. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) section 17C of the 1978 Act [F541(in the case of personal dental

services)], or (iii) the corresponding provisions of the law in force in Northern

Ireland][F542or (c) local pharmaceutical services provided under[F543 the National Health Service

Act 2006 or the National Health Service (Wales) Act 2006].]

(5) In this Part— “Crown use”, in relation to a design, means the doing of anything by virtue

of this section which would otherwise be an infringement of design right in the design; and

“the government department concerned”, in relation to such use, means the government department by whom or on whose authority the act was done.

(6) The authority of a government department in respect of Crown use of a design may be given to a person either before or after the use and whether or not he is authorised, directly or indirectly, by the design right owner to do anything in relation to the design.

(7) A person acquiring anything sold in the exercise of powers conferred by this section, and any person claiming under him, may deal with it in the same manner as if the design right were held on behalf of the Crown.

Annotations:

Amendments (Textual) F534 S. 240(4)(za) inserted (1.4.2004) by Health and Social Care (Community Health and Standards) Act

2003 (c. 43), ss. 184, 199(1), Sch. 11 para. 52(a); S.I. 2004/288, art. 5 (with art. 8) (as amended by S.I. 2004/866, art. 2) and by S.I. 2004/480, art. 4 (with art. 7) (as amended by S.I. 2004/1019, art. 2)

F535 Words in s. 240(4)(za) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8, Sch. 1 para. 113(a) (with s. 5, Sch. 3 Pt. 1)

F536 Words in s. 240(4)(za) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 5(a)

F537 S. 240(4)(a)(b) substituted (1.4.1998) by 1997 c. 46, s. 41(10), Sch. 2 Pt. I para. 63; S.I. 1998/631, art. 2(1)(b), Sch. 2 (subject to arts. 3-5)

F538 S. 240(4)(a)(i) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8, Sch. 1 para. 113(b) (with s. 5, Sch. 3 Pt. 1)

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F539 Words in s. 240(4)(a)(ii) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 5(b)

F540 S. 240(4)(b)(i) repealed (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 184, 196, 199(1), Sch. 11 para. 52(c), Sch. 14 Pt. 4; S.I. 2004/288, art. 5 (with art. 8) (as amended by S.I. 2004/866, art. 2) and by S.I. 2004/480, art. 4 (with art. 7) (as amended by S.I. 2004/1019, art. 2)

F541 Words in s. 240(4)(b)(ii) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 5(c)

F542 S. 240(4)(c) and the word "or" immediately preceding it inserted (1.7.2002 for W. and 1.1.2003 for E.) by 2001 c. 15, ss. 67(1), 70(2), Sch. 5 Pt. 1 para. 7 (with ss. 64(9), 65(4)); S.I. 2002/1475, art. 2(1), Sch. Pt. I; S.I. 2003/53, art. 2

F543 Words in s. 240(4)(c) substituted (1.3.2007) for s. 240(4)(c)(i)(ii) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8, Sch. 1 para. 113(c) (with s. 5, Sch. 3 Pt. 1)

241 Settlement of terms for Crown use.

(1) Where Crown use is made of a design, the government department concerned shall— (a) notify the design right owner as soon as practicable, and (b) give him such information as to the extent of the use as he may from time to

time require, unless it appears to the department that it would be contrary to the public interest to do so or the identity of the design right owner cannot be ascertained on reasonable inquiry.

(2) Crown use of a design shall be on such terms as, either before or after the use, are agreed between the government department concerned and the design right owner with the approval of the Treasury or, in default of agreement, are determined by the court.

In the application of this subsection to Northern Ireland the reference to the Treasury shall, where the government department referred to in that subsection is a Northern Ireland department, be construed as a reference to the Department of Finance and Personnel.

[F544In the application of this subsection to Scotland, where the government department referred to in that subsection is any part of the Scottish Administration, the words “with the approval of the Treasury” are omitted.]

(3) Where the identity of the design right owner cannot be ascertained on reasonable inquiry, the government department concerned may apply to the court who may order that no royalty or other sum shall be payable in respect of Crown use of the design until the owner agrees terms with the department or refers the matter to the court for determination.

Annotations:

Amendments (Textual) F544 Paragraph in s. 241(2) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 93(2); S.I.

1998/3178, art. 3

242 Rights of third parties in case of Crown use.

(1) The provisions of any licence, assignment or agreement made between the design right owner (or anyone deriving title from him or from whom he derives title) and any

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person other than a government department are of no effect in relation to Crown use of a design, or any act incidental to Crown use, so far as they—

(a) restrict or regulate anything done in relation to the design, or the use of any model, document or other information relating to it, or

(b) provide for the making of payments in respect of, or calculated by reference to such use;

and the copying or issuing to the public of copies of any such model or document in connection with the thing done, or any such use, shall be deemed not to be an infringement of any copyright in the model or document.

(2) Subsection (1) shall not be construed as authorising the disclosure of any such model, document or information in contravention of the licence, assignment or agreement.

(3) Where an exclusive licence is in force in respect of the design— (a) if the licence was granted for royalties—

(i) any agreement between the design right owner and a government department under section 241 (settlement of terms for Crown use) requires the consent of the licensee, and

(ii) the licensee is entitled to recover from the design right owner such part of the payment for Crown use as may be agreed between them or, in default of agreement, determined by the court;

(b) if the licence was granted otherwise than for royalties— (i) section 241 applies in relation to anything done which but for

section 240 (Crown use) and subsection (1) above would be an infringement of the rights of the licensee with the substitution for references to the design right owner of references to the licensee, and

(ii) section 241 does not apply in relation to anything done by the licensee by virtue of an authority given under section 240.

(4) Where the design right has been assigned to the design right owner in consideration of royalties—

(a) section 241 applies in relation to Crown use of the design as if the references to the design right owner included the assignor, and any payment for Crown use shall be divided between them in such proportion as may be agreed or, in default of agreement, determined by the court; and

(b) section 241 applies in relation to any act incidental to Crown use as it applies in relation to Crown use of the design.

(5) Where any model, document or other information relating to a design is used in connection with Crown use of the design, or any act incidental to Crown use, section 241 applies to the use of the model, document or other information with the substitution for the references to the design right owner of references to the person entitled to the benefit of any provision of an agreement rendered inoperative by subsection (1) above.

(6) In this section— “act incidental to Crown use” means anything done for the services of the

Crown to the order of a government department by the design right owner in respect of a design;

“payment for Crown use” means such amount as is payable by the government department concerned by virtue of section 241; and

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“royalties” includes any benefit determined by reference to the use of the design.

243 Crown use: compensation for loss of profit.

(1) Where Crown use is made of a design, the government department concerned shall pay—

(a) to the design right owner, or (b) if there is an exclusive licence in force in respect of the design, to the exclusive

licensee, compensation for any loss resulting from his not being awarded a contract to supply the articles made to the design.

(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was under- used.

(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles made to the design otherwise than for the services of the Crown.

(5) The amount payable shall, if not agreed between the design right owner or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under section 252; and it is in addition to any amount payable under section 241 or 242.

(6) In the application of this section to Northern Ireland, the reference in subsection (5) to the Treasury shall, where the government department concerned is a Northern Ireland department, be construed as a reference to the Department of Finance and Personnel.

[F545(7) In the application of this section to Scotland, where the government department referred to in subsection (5) is any part of the Scottish Administration, the words “with the approval of the Treasury” in that subsection are omitted.]

Annotations:

Amendments (Textual) F545 S. 243(7) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 93(3); S.I. 1998/3178,

art. 3

244 Special provision for Crown use during emergency.

(1) During a period of emergency the powers exercisable in relation to a design by virtue of section 240 (Crown use) include power to do any act which would otherwise be an infringement of design right for any purpose which appears to the government department concerned necessary or expedient—

(a) for the efficient prosecution of any war in which Her Majesty may be engaged; (b) for the maintenance of supplies and services essential to the life of the

community;

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(d) for promoting the productivity of industry, commerce and agriculture; (e) for fostering and directing exports and reducing imports, or imports of any

classes, from all or any countries and for redressing the balance of trade; (f) generally for ensuring that the whole resources of the community are available

for use, and are used, in a manner best calculated to serve the interests of the community; or

(g) for assisting the relief of suffering and the restoration and distribution of essential supplies and services in any country outside the United Kingdom which is in grave distress as the result of war.

(2) References in this Part to the services of the Crown include, as respects a period of emergency, those purposes; and references to “Crown use” include any act which would apart from this section be an infringement of design right.

(3) In this section “period of emergency” means a period beginning with such date as may be declared by Order in Council to be the beginning, and ending with such date as may be so declared to be the end, of a period of emergency for the purposes of this section.

(4) No Order in Council under this section shall be submitted to Her Majesty unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

General

245 Power to provide for further exceptions.

(1) The Secretary of State may if it appears to him necessary in order to— (a) comply with an international obligation of the United Kingdom, or (b) secure or maintain reciprocal protection for British designs in other countries,

by order provide that acts of a description specified in the order do not infringe design right.

(2) An order may make different provision for different descriptions of design or article.

(3) An order shall be made by statutory instrument and no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

CHAPTER IV

JURISDICTION OF THE COMPTROLLER AND THE COURT

Jurisdiction of the comptroller

246 Jurisdiction to decide matters relating to design right.

(1) A party to a dispute as to any of the following matters may refer the dispute to the comptroller for his decision—

(a) the subsistence of design right,

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(b) the term of design right, or (c) the identity of the person in whom design right first vested;

and the comptroller’s decision on the reference is binding on the parties to the dispute.

(2) No other court or tribunal shall decide any such matter except— (a) on a reference or appeal from the comptroller, (b) in infringement or other proceedings in which the issue arises incidentally, or (c) in proceedings brought with the agreement of the parties or the leave of the

comptroller.

(3) The comptroller has jurisdiction to decide any incidental question of fact or law arising in the course of a reference under this section.

247 Application to settle terms of licence of right.

(1) A person requiring a licence which is available as of right by virtue of— (a) section 237 (licences available in last five years of design right), or (b) an order under section 238 (licences made available in the public interest),

may apply to the comptroller to settle the terms of the licence.

(2) No application for the settlement of the terms of a licence available by virtue of section 237 may be made earlier than one year before the earliest date on which the licence may take effect under that section.

(3) The terms of a licence settled by the comptroller shall authorise the licensee to do— (a) in the case of licence available by virtue of section 237, everything which

would be an infringement of the design right in the absence of a licence; (b) in the case of a licence available by virtue of section 238, everything in respect

of which a licence is so available.

(4) In settling the terms of a licence the comptroller shall have regard to such factors as may be prescribed by the Secretary of State by order made by statutory instrument.

(5) No such order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

(6) Where the terms of a licence are settled by the comptroller, the licence has effect— (a) in the case of an application in respect of a licence available by virtue of

section 237 made before the earliest date on which the licence may take effect under that section, from that date;

(b) in any other case, from the date on which the application to the comptroller was made.

248 Settlement of terms where design right owner unknown.

(1) This section applies where a person making an application under section 247 (settlement of terms of licence of right) is unable on reasonable inquiry to discover the identity of the design right owner.

(2) The comptroller may in settling the terms of the licence order that the licence shall be free of any obligation as to royalties or other payments.

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(3) If such an order is made the design right owner may apply to the comptroller to vary the terms of the licence with effect from the date on which his application is made.

(4) If the terms of a licence are settled by the comptroller and it is subsequently established that a licence was not available as of right, the licensee shall not be liable in damages for, or for an account of profits in respect of, anything done before he was aware of any claim by the design right owner that a licence was not available.

249 Appeals as to terms of licence of right.

(1) An appeal lies from any decision of the comptroller under section 247 or 248 (settlement of terms of licence of right) to the Appeal Tribunal constituted under section 28 of the M33Registered Designs Act 1949.

(2) Section 28 of that Act applies to appeals from the comptroller under this section as it applies to appeals from the registrar under that Act; but rules made under that section may make different provision for appeals under this section.

Annotations:

Marginal Citations M33 1949 c. 88.

250 Rules.

(1) The Secretary of State may make rules for regulating the procedure to be followed in connection with any proceeding before the comptroller under this Part.

(2) Rules may, in particular, make provision— (a) prescribing forms; (b) requiring fees to be paid; (c) authorising the rectification of irregularities of procedure; (d) regulating the mode of giving evidence and empowering the comptroller to

compel the attendance of witnesses and the discovery of and production of documents;

(e) providing for the appointment of advisers to assist the comptroller in proceedings before him;

(f) prescribing time limits for doing anything required to be done (and providing for the alteration of any such limit); and

(g) empowering the comptroller to award costs and to direct how, to what party and from what parties, costs are to be paid.

(3) Rules prescribing fees require the consent of the Treasury.

(4) The remuneration of an adviser appointed to assist the comptroller shall be determined by the Secretary of State with the consent of the Treasury and shall be defrayed out of money provided by Parliament.

(5) Rules shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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Jurisdiction of the court

251 References and appeals on design right matters.

(1) In any proceedings before him under section 246 (reference of matter relating to design right), the comptroller may at any time order the whole proceedings or any question or issue (whether of fact or law) to be referred, on such terms as he may direct, to the High Court or, in Scotland, the Court of Session.

(2) The comptroller shall make such an order if the parties to the proceedings agree that he should do so.

(3) On a reference under this section the court may exercise any power available to the comptroller by virtue of this Part as respects the matter referred to it and, following its determination, may refer any matter back to the comptroller.

(4) An appeal lies from any decision of the comptroller in proceedings before him under section 246 (decisions on matters relating to design right) to the High Court or, in Scotland, the Court of Session.

252 Reference of disputes relating to Crown use.

(1) A dispute as to any matter which falls to be determined by the court in default of agreement under—

(a) section 241 (settlement of terms for Crown use), (b) section 242 (rights of third parties in case of Crown use), or (c) section 243 (Crown use: compensation for loss of profit),

may be referred to the court by any party to the dispute.

(2) In determining a dispute between a government department and any person as to the terms for Crown use of a design the court shall have regard to—

(a) any sums which that person or a person from whom he derives title has received or is entitled to receive, directly or indirectly, from any government department in respect of the design; and

(b) whether that person or a person from whom he derives title has in the court’s opinion without reasonable cause failed to comply with a request of the department for the use of the design on reasonable terms.

(3) One of two or more joint owners of design right may, without the concurrence of the others, refer a dispute to the court under this section, but shall not do so unless the others are made parties; and none of those others is liable for any costs unless he takes part in the proceedings.

(4) Where the consent of an exclusive licensee is required by section 242(3)(a)(i) to the settlement by agreement of the terms for Crown use of a design, a determination by the court of the amount of any payment to be made for such use is of no effect unless the licensee has been notified of the reference and given an opportunity to be heard.

(5) On the reference of a dispute as to the amount recoverable as mentioned in section 242(3)(a)(ii) (right of exclusive licensee to recover part of amount payable to design right owner) the court shall determine what is just having regard to any expenditure incurred by the licensee—

(a) in developing the design, or

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(b) in making payments to the design right owner in consideration of the licence (other than royalties or other payments determined by reference to the use of the design).

(6) In this section “the court” means— (a) in England and Wales, the High Court or any patents county court having

jurisdiction by virtue of an order under section 287 of this Act, (b) in Scotland, the Court of Session, and (c) in Northern Ireland, the High Court.

CHAPTER V

MISCELLANEOUS AND GENERAL

Miscellaneous

253 Remedy for groundless threats of infringement proceedings.

(1) Where a person threatens another person with proceedings for infringement of design right, a person aggrieved by the threats may bring an action against him claiming—

(a) a declaration to the effect that the threats are unjustifiable; (b) an injunction against the continuance of the threats; (c) damages in respect of any loss which he has sustained by the threats.

(2) If the plaintiff proves that the threats were made and that he is a person aggrieved by them, he is entitled to the relief claimed unless the defendant shows that the acts in respect of which proceedings were threatened did constitute, or if done would have constituted, an infringement of the design right concerned.

(3) Proceedings may not be brought under this section in respect of a threat to bring proceedings for an infringement alleged to consist of making or importing anything.

(4) Mere notification that a design is protected by design right does not constitute a threat of proceedings for the purposes of this section.

254 Licensee under licence of right not to claim connection with design right owner.

(1) A person who has a licence in respect of a design by virtue of section 237 or 238 (licences of right) shall not, without the consent of the design right owner—

(a) apply to goods which he is marketing, or proposes to market, in reliance on that licence a trade description indicating that he is the licensee of the design right owner, or

(b) use any such trade description in an advertisement in relation to such goods.

(2) A contravention of subsection (1) is actionable by the design right owner.

(3) In this section “trade description”, the reference to applying a trade description to goods and “advertisement” have the same meaning as in the M34Trade Descriptions Act 1968.

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Annotations:

Marginal Citations M34 1968 c. 29.

Extent of operation of this Part

255 Countries to which this Part extends.

(1) This Part extends to England and Wales, Scotland and Northern Ireland.

(2) Her Majesty may by Order in Council direct that this Part shall extend, subject to such exceptions and modifications as may be specified in the Order, to—

(a) any of the Channel Islands, (b) the Isle of Man, or (c) any colony.

(3) That power includes power to extend, subject to such exceptions and modifications as may be specified in the Order, any Order in Council made under section 221 (further provision as to qualification for design right protection) or section 256 (countries enjoying reciprocal protection).

(5) Where a country to which this Part extends ceases to be a colony of the United Kingdom, it shall continue to be treated as such a country for the purposes of this Part until—

(a) an Order in Council is made under section 256 designating it as a country enjoying reciprocal protection, or

(b) an Order in Council is made declaring that it shall cease to be so treated by reason of the fact that the provisions of this Part as part of the law of that country have been amended or repealed.

(6) A statutory instrument containing an Order in Council under subsection (5)(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

256 Countries enjoying reciprocal protection.

(1) Her Majesty may, if it appears to Her that the law of a country provides adequate protection for British designs, by Order in Council designate that country as one enjoying reciprocal protection under this Part.

(2) If the law of a country provides adequate protection only for certain classes of British design, or only for designs applied to certain classes of article, any Order designating that country shall contain provision limiting, to a corresponding extent, the protection afforded by this Part in relation to designs connected with that country.

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(3) An Order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

257 Territorial waters and the continental shelf.

(1) For the purposes of this Part the territorial waters of the United Kingdom shall be treated as part of the United Kingdom.

(3) The United Kingdom sector of the continental shelf means the areas designated by order under section 1(7) of the M35Continental Shelf Act 1964.

Annotations:

Marginal Citations M35 1964 c. 29.

Interpretation

258 Construction of references to design right owner.

(1) Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of design right in a work, the design right owner for any purpose of this Part is the person who is entitled to the right in the respect relevant for that purpose.

(2) Where design right (or any aspect of design right) is owned by more than one person jointly, references in this Part to the design right owner are to all the owners, so that, in particular, any requirement of the licence of the design right owner requires the licence of all of them.

259 Joint designs.

(1) In this Part a “joint design” means a design produced by the collaboration of two or more designers in which the contribution of each is not distinct from that of the other or others.

(2) References in this Part to the designer of a design shall, except as otherwise provided, be construed in relation to a joint design as references to all the designers of the design.

260 Application of provisions to articles in kit form.

(1) The provisions of this Part apply in relation to a kit, that is, a complete or substantially complete set of components intended to be assembled into an article, as they apply in relation to the assembled article.

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(2) Subsection (1) does not affect the question whether design right subsists in any aspect of the design of the components of a kit as opposed to the design of the assembled article.

261 Requirement of signature: application in relation to body corporate.

The requirement in the following provisions that an instrument be signed by or on behalf of a person is also satisfied in the case of a body corporate by the affixing of its seal—

section 222(3) (assignment of design right), section 223(1) (assignment of future design right), section 225(1) (grant of exclusive licence).

262 Adaptation of expressions in relation to Scotland.

In the application of this Part to Scotland— “account of profits” means accounting and payment of profits; “accounts” means count, reckoning and payment; “assignment” means assignation; “costs” means expenses; “defendant” means defender; “delivery up” means delivery; “injunction” means interdict; “interlocutory relief” means interim remedy; and “plaintiff” means pursuer.

263 Minor definitions.

(1) In this Part— “British design” means a design which qualifies for design right protection

by reason of a connection with the United Kingdom of the designer or the person by whom the design is commissioned or the designer is employed;

“business” includes a trade or profession; “commission” means a commission for money or money’s worth; “the comptroller” means the Comptroller-General of Patents, Designs and

Trade Marks; “computer-generated”, in relation to a design, means that the design is

generated by computer in circumstances such that there is no human designer, “country” includes any territory; “the Crown” includes the Crown in right of Her Majesty’s Government

in Northern Ireland [F546and the Crown in right of the Scottish Administration][F547and the Crown in right of the Welsh Assembly Government];

“design document” means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise;

“employee”, “employment” and “employer” refer to employment under a contract of service or of apprenticeship;

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“government department” includes a Northern Ireland department [F548and any part of the Scottish Administration][F549and any part of the Welsh Assembly Government].

(2) References in this Part to “marketing”, in relation to an article, are to its being sold or let for hire, or offered or exposed for sale or hire, in the course of a business, and related expressions shall be construed accordingly; but no account shall be taken for the purposes of this Part of marketing which is merely colourable and not intended to satisfy the reasonable requirements of the public.

(3) References in this Part to an act being done in relation to an article for “commercial purposes” are to its being done with a view to the article in question being sold or hired in the course of a business.

Annotations:

Amendments (Textual) F546 Words in definition of "the Crown" in s. 263(1) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4,

Sch. 2 Pt. I para. 93(4)(a); S.I. 1998/3178, art. 3 F547 S. 263(1): words in definition of "the Crown" inserted by Government of Wales Act 2006 (c. 32),

s. 160(1), Sch. 10 para. 31(2) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F548 Words in definition of "government department" in s. 263(1) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 93(4)(b); S.I. 1998/3178, art. 3

F549 S. 263(1): words in definition of "government department" inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 31(3) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

264 Index of defined expressions.

The following Table shows provisions defining or otherwise explaining expressions used in this Part (other than provisions defining or explaining an expression used only in the same section)—

account of profits and accounts (in Scotland)

section 262

assignment (in Scotland) section 262 British designs section 263(1) business section 263(1) commercial purposes section 263(3) commission section 263(1) the comptroller section 263(1)

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computer-generated section 263(1) costs (in Scotland) section 262 country section 263(1) the Crown section 263(1) Crown use sections 240(5) and 244(2) defendant (in Scotland) section 262 delivery up (in Scotland) section 262 design section 213(2) design document section 263(1) designer sections 214 and 259(2) design right section 213(1) design right owner sections 234(2) and 258 employee, employment and employer section 263(1) exclusive licence section 225(1) government department section 263(1) government department concerned (in relation to Crown use)

section 240(5)

infringing article section 228 injunction (in Scotland) section 262 interlocutory relief (in Scotland) section 262 joint design section 259(1) licence (of the design right owner) sections 222(4), 223(3) and 258 making articles to a design section 226(2) marketing (and related expressions) section 263(2) original section 213(4) plaintiff (in Scotland) section 262 qualifying individual section 217(1) qualifying person sections 217(1) and (2) signed section 261

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PART IV

REGISTERED DESIGNS

Annotations:

Modifications etc. (not altering text) C107 Pt. IV (ss. 265-273) extended (with modifications) (Isle of Man) (9.12.2001) by S.I. 2001/3678, art. 3,

Sch. 3

Amendments of the Registered Designs Act 1949

F550265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F550 S. 265 repealed (9.12.2001) by S.I. 2001/3949, reg. 9(2), Sch. 2 (with transitional provisions in regs.

10-14)

266 Provisions with respect to certain designs registered in pursuance of application made before commencement.

(1) Where a design is registered under the Registered Designs Act 1949 in pursuance of an application made after 12th January 1988 and before the commencement of this part which could not have been registered under section 1 of that Act as substituted by section 265 above—

(a) the right in the registered design expires ten years after the commencement of this part, if it does not expire earlier in accordance with the 1949 Act, and

(b) any person is, after the commencement of this Part, entitled as of right to a licence to do anything which would otherwise infringe the right in the registered design.

(2) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the registrar on an application by the person requiring the licence; and the terms so settled shall authorise the licensee to do everything which would be an infringement of the right in the registered design in the absence of a licence.

(3) In settling the terms of a licence the registrar shall have regard to such factors as may be prescribed by the Secretary of State by order made by statutory instrument.

No such order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

(4) Where the terms of a licence are settled by the registrar, the licence has effect from the date on which the application to the registrar was made.

(5) Section 11B of the 1949 Act (undertaking to take licence of right in infringement proceedings), as inserted by section 270 below, applies where a licence is available as of right under this section, as it applies where a licence is available as of right under section 11A of that Act.

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(6) Where a licence is available as of right under this section, a person to whom a licence was granted before the commencement of this part may apply to the registrar for an order adjusting the terms of that licence.

(7) an appeal lies from any decision of the registrar under this section.

(8) This section shall be construed as one with the Registered Designs Act 1949.

267 Authorship and first ownership of designs.

(1) Section 2 of the Registered Designs Act 1949 (proprietorship of designs) is amended as follows.

(2) For subsection (1) substitute—

“(1) The author of a design shall be treated for the purposes of this Act as the original proprietor of the design, subject to the following provisions.

(1A) Where a design is created in pursuance of a commission for money or money’s worth, the person commissioning the design shall be treated as the original proprietor of the design.

(1B) Where, in a case not falling within subsection (1A), a design is created by an employee in the course of his employment, his employer shall be treated as the original proprietor of the design.”.

(3) After subsection (2) insert—

“(3) In this Act the “author” of a design means the person who creates it.

(4) In the case of a design generated by computer in circumstances such that there is no human author, the person by whom the arrangements necessary for the creation of thee design are made shall be taken to be the author.”.

(4) The amendments made by this section do not apply in relation to an application for registration made before the commencement of this Part.

F551268 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F551 S. 268 repealed (9.12.2001) by S.I. 2001/3949, reg. 9(2), Sch. 2 (with transitional provisions in regs.

10-14)

269 Duration of right in registered design.

(1) For section 8 of the M36Registered Designs Act 1949 (period of right) substitute—

“8 Duration of right in registered design.

(1) The right in a registered design subsists in the first instance for a period of five years from the date of the registration of the design.

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(2) The period for which the right subsists may be extended for a second, third, fourth and fifth period of five years, by applying to the registrar for an extension and paying the prescribed renewal fee.

(3) If the first, second, third or fourth period expires without such application and payment being made, the right shall cease to have effect; and the registrar shall, in accordance with rules made by the Secretary of State, notify the proprietor of that fact.

(4) If during the period of six months immediately following the end of that period an application for extension is made and the prescribed renewal fee and any prescribed additional fee is paid, the right shall be treated as if it had never expired, with the result that—

(a) anything done under or in relation to the right during that further period shall be treated as valid,

(b) an act which would have constituted an infringement of the right if it had not expired shall be treated as an infringement, and

(c) an act which would have constituted use of the design for the services of the Crown if the right had not expired shall be treated as such use.

(5) Where it is shown that a registered design— (a) was at the time it was registered a corresponding design in relation to

an artistic work in which copyright subsists, and (b) by reason of a previous use of that work would not have been

registrable but for section 6(4) of this Act (registration despite certain prior applications of design),

the right in the registered design expires when the copyright in that work expires, if that is earlier than the time at which it would otherwise expire, and it may not thereafter be renewed.

(6) The above provisions have effect subject to the proviso to section 4(1) (registration of same design in respect of other articles, &c.).

8A Restoration of lapsed right in design.

(1) Where the right in a registered design has expired by reason of a failure to extend, in accordance with section 8(2) or (4), the period for which the right subsists, an application for the restoration of the right in the design may be made to the registrar within the prescribed period.

(2) The application may be made by the person who was the registered proprietor of the design or by any other person who would have been entitled to the right in the design if it had not expired; and where the design was held by two or more persons jointly, the application may, with the leave of the registrar, be made by one or more of them without joining the others.

(3) Notice of the application shall be published by the registrar in the prescribed manner.

(4) If the registrar is satisfied that the proprietor took reasonable care to see that the period for which the right subsisted was extended in accordance with section 8(2) or (4), he shall, on payment of any unpaid renewal fee and any prescribed additional fee, order the restoration of the right in the design.

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(5) The order may be made subject to such conditions as the registrar thinks fit, and if the proprietor of the design does not comply with any condition the registrar may revoke the order and give such consequential directions as he thinks fit.

(6) Rules altering the period prescribed for the purposes of subsection (1) may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient.

8B Effect of order for restoration of right.

(1)

The effect of an order under section 8A for the restoration of the right in a registered design is as follows.

(2) Anything done under or in relation to the right during the period between expiry and restoration shall be treated as valid.

(3) Anything done during that period which would have constituted an infringement if the right had not expired shall be treated as an infringement—

(a) if done at a time when it was possible for an application for extension to be made under section 8(4); or

(b) if it was a continuation or repetition of an earlier infringing act.

(4) If, after it was no longer possible for such an application for extension to be made and before publication of notice of the application for restoration, a person—

(a) began in good faith to do an act which would have constituted an infringement of the right in the design if it had not expired, or

(b) made in good faith effective and serious preparations to do such an act,

he has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the restoration of the right in the design; but this does not extend to granting a licence to another person to do the act.

(5) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (4) may—

(a) authorise the doing of that act by any partners of his for the time being in that business, and

(b) assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(6) Where an article is disposed of to another in exercise of the rights conferred by subsection (4) or subsection (5), that other and any person claiming through him may deal with the article in the same way as if it had been disposed of by the registered proprietor of the design.

(7) The above provisions apply in relation to the use of a registered design for the services of the Crown as they apply in relation to infringement of the right in the design.”.

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(2) The above amendment does not apply in relation to the right in a design registered in pursuance of an application made before the commencement of this Part.

Annotations:

Marginal Citations M36 1949 c. 88.

270 Powers exercisable for protection of the public interest.

In the M37Registered Designs Act 1949 after section 11 insert—

“11A Powers exercisable for protection of the public interest.

(1) Where a report of the Monopolies and Mergers Commission has been laid before Parliament containing conclusions to the effect—

(a) on a monopoly reference, that a monopoly situation exists and facts found by the Commission operate or may be expected to operate against the public interest,

(b) on a merger reference, that a merger situation qualifying for investigation has been created and the creation of the situation, or particular elements in or consequences of it specified in the report, operate or may be expected to operate against the public interest,

(c) on a competition reference, that a person was engaged in an anti- competitive practice which operated or may be expected to operate against the public interest, or

(d) on a reference under section 11 of the Competition Act 1980 (reference of public bodies and certain other persons), that a person is pursuing a course of conduct which operates against the public interest,

the appropriate Minister or Ministers may apply to the registrar to take action under this section.

(2) Before making an application the appropriate Minister or Ministers shall publish, in such a manner as he or they think appropriate, a notice describing the nature of the proposed application and shall consider any representations which may be made within 30 days of such publication by persons whose interests appear to him or them to be affected.

(3) If on an application under this section it appears to the registrar that the matters specified in the Commission’s report as being those which in the Commission’s opinion operate or operated or may be expected to operate against the public interest include—

(a) conditions in licences granted in respect of a registered design by its proprietor restricting the use of the design by the licensee or the right of the proprietor to grant other licences, or

(b) a refusal by the proprietor of a registered design to grant licences on reasonable terms,

he may by order cancel or modify any such condition or may, instead or in addition, make an entry in the register to the effect that licences in respect of the design are to be available as of right.

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(4) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the registrar on an application by the person requiring the licence; and terms so settled shall authorise the licensee to do everything which would be an infringement of the right in the registered design in the absence of a licence.

(5) Where the terms of a licence are settled by the registrar the licence has effect from the date on which the application to him was made.

(6) An appeal lies from any order of the registrar under this section.

(7) In this section “the appropriate Minister or Ministers” means the Minister or Ministers to whom the report of the Monopolies and Mergers Commission was made.

11B Undertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of the right in a registered design in respect of which a licence is available as of right under section 11A of this Act the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the registrar under that section—

(a) no injunction shall be granted against him, and (b) the amount recoverable against him by way of damages or on an

account of profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.

(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.”.

Annotations:

Marginal Citations M37 1949 c. 88.

271 Crown use: compensation for loss of profit.

(1) In Schedule 1 to the M38Registered Designs Act 1949 (Crown use), after paragraph 2 insert—

“2A (1) Where Crown use is made of a registered design, the government department concerned shall pay—

(a) to the registered proprietor, or (b) if there is an exclusive licence in force in respect of the design,

to the exclusive licensee, compensation for any loss resulting from his not being awarded a contract to supply the articles to which the design is applied.

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(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was underused.

(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles to which the design is applied otherwise than for the services of the Crown.

(5) The amount payable under this paragraph shall, if not agreed between the registered proprietor or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under paragraph 3; and it is in addition to any amount payable under paragraph 1 or 2 of this Schedule.

(6) In this paragraph— “Crown use”, in relation to a design, means the doing of

anything by virtue of paragraph 1 which would otherwise be an infringement of the right in the design; and

“the government department concerned”, in relation to such use, means the government department by whom or on whose authority the act was done.”.

(2) In paragraph 3 of that Schedule (reference of disputes as to Crown use), for sub- paragraph (1) substitute—

“(1) Any dispute as to— (a) the exercise by a Government department, or a person authorised

by a Government department, of the powers conferred by paragraph 1 of this Schedule,

(b) terms for the use of a design for the services of the Crown under that paragraph,

(d) the right of any person to receive a payment under paragraph 2A, may be referred to the court by either party to the dispute.”.

(3) The above amendments apply in relation to any Crown use of a registered design after the commencement of this section, even if the terms for such use were settled before commencement.

Annotations:

Marginal Citations M38 1949 c. 88.

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272 Minor and consequential amendments.

The M39Registered Designs Act 1949 is further amended in accordance with Schedule 3 which contains minor amendments and amendments consequential upon the provisions of this Act.

Annotations:

Marginal Citations M39 1949 c. 88.

Supplementary

273 Text of Registered Designs Act 1949 as amended.

Schedule 4 contains the text of the Registered Designs Act 1949 as amended.

PART V

PATENT AGENTS AND TRADE MARK AGENTS

Patent agents

274 Persons permitted to carry on business of a patent agent.

(1) Any individual, partnership or body corporate may, subject to the following provisions of this Part [F552and to the Legal Services Act 2007] , carry on the business of acting as agent for others for the purpose of—

(a) applying for or obtaining patents, in the United Kingdom or elsewhere, or (b) conducting proceedings before the comptroller relating to applications for, or

otherwise in connection with, patents.

(2) This does not affect any restriction under the European Patent Convention as to who may act on behalf of another for any purpose relating to European patents.

Annotations:

Amendments (Textual) F552 Words in s. 274(1) inserted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 185(2), 211 (with ss. 29,

192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9)

[F553275 The register of patent attorneys

(1) There is to continue to be a register of persons who act as agent for others for the purpose of applying for or obtaining patents.

(2) In this Part a registered patent attorney means an individual whose name is entered on the register kept under this section.

(3) The register is to be kept by the Chartered Institute of Patent Attorneys.

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(4) The Secretary of State may, by order, amend subsection (3) so as to require the register to be kept by the person specified in the order.

(5) Before making an order under subsection (4), the Secretary of State must consult the Legal Services Board.

(6) An order under this section must be made by statutory instrument.

(7) An order under this section may not be made unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.]

Annotations:

Amendments (Textual) F553 Ss. 275, 275A substituted (1.1.2010) for s. 275 by Legal Services Act 2007 ( c. 29), {ss. 185(3)}, 211

(with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9)

[F554275ARegulation of patent attorneys

(1) The person who keeps the register under section 275 may make regulations which regulate—

(a) the keeping of the register and the registration of persons; (b) the carrying on of patent attorney work by registered persons.

(2) Those regulations may, amongst other things, make— (a) provision as to the educational and training qualifications, and other

requirements, which must be satisfied before an individual may be registered or for an individual to remain registered;

(b) provision as to the requirements which must be met by a body (corporate or unincorporate) before it may be registered, or for it to remain registered, including provision as to the management and control of the body;

(d) provision regulating the practice, conduct and discipline of registered persons or regulated persons;

(e) provision authorising in such cases as may be specified in the regulations the erasure from the register of the name of any person registered in it, or the suspension of a person's registration;

(f) provision requiring the payment of such fees as may be specified in or determined in accordance with the regulations;

(g) provision about the provision to be made by registered persons in respect of complaints made against them;

(h) provision about the keeping by registered persons or regulated persons of records and accounts;

(i) provision for reviews of or appeals against decisions made under the regulations;

(j) provision as to the indemnification of registered persons or regulated persons against losses arising from claims in respect of civil liability incurred by them.

(3) Regulations under this section may make different provision for different purposes.

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(4) Regulations under this section which are not regulatory arrangements within the meaning of the Legal Services Act 2007 are to be treated as such arrangements for the purposes of that Act.

(5) Before the appointed day, regulations under this section may be made only with the approval of the Secretary of State.

(6) The powers conferred to make regulations under this section are not to be taken to prejudice—

(a) any other power which the person who keeps the register may have to make rules or regulations (however they may be described and whether they are made under an enactment or otherwise);

(b) any rules or regulations made by that person under any such power.

(7) In this section— “appointed day” means the day appointed for the coming into force of

paragraph 1 of Schedule 4 to the Legal Services Act 2007; “manager”, in relation to a body, has the same meaning as in the Legal

Services Act 2007 (see section 207); “patent attorney work” means work done in the course of carrying on the

business of acting as agent for others for the purpose of— (a) applying for or obtaining patents, in the United Kingdom or elsewhere,

or (b) conducting proceedings before the comptroller relating to applications

for, or otherwise in connection with, patents; “registered person” means—

(a) a registered patent attorney, or (b) a body (corporate or unincorporate) registered in the register kept under

section 275; “regulated person” means a person who is not a registered person but is a

manager or employee of a body which is a registered person.]

Annotations:

Amendments (Textual) F554 Ss. 275, 275A substituted (1.1.2010) for s. 275 by Legal Services Act 2007 ( c. 29), {ss. 185(3)}, 211

(with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9)

276 Persons entitled to describe themselves as patent agents.

(1) An individual who is not a [F555registered patent attorney] shall not— (a) carry on a business (otherwise than in partnership) under any name or other

description which contains the words “patent agent” or “patent attorney”; or (b) in the course of a business otherwise describe himself, or permit himself to be

described, as a “patent agent” or “patent attorney”.

(2) A partnership [F556or other unincorporated body] shall not— (a) carry on a business under any name or other description which contains the

words “patent agent” or “patent attorney”; or

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(b) in the course of a business otherwise describe itself, or permit itself to be described as, a firm of “patent agents” or “patent attorneys”,

unless [F557the partnership or other body is registered in the register kept under section 275].

(3) A body corporate shall not— (a) carry on a business (otherwise than in partnership) under any name or other

description which contains the words “patent agent” or “patent attorney”; or (b) in the course of a business otherwise describe itself, or permit itself to be

described as, a “patent agent” or “patent attorney”, unless [F558the body corporate is registered in the register kept under section 275.]

(4) Subsection (3) does not apply to a company which began to carry on business as a patent agent before 17th November 1917 if the name of a director or the manager of the company who is a registered patent [F559attorney] is mentioned as being so registered in all professional advertisements, circulars or letters issued by or with the company’s consent on which its name appears.

(5) Where this section would be contravened by the use of the words “patent agent” or “patent attorney” in reference to an individual, partnership or body corporate, it is equally contravened by the use of other expressions in reference to that person, or his business or place of business, which are likely to be understood as indicating that he is entitled to be described as a “patent agent” or “patent attorney”.

(6) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale; and proceedings for such an offence may be begun at any time within a year from the date of the offence.

(7) This section has effect subject to— (a) section 277 (persons entitled to describe themselves as European patent

attorneys, &c.), and (b) section 278(1) (use of term “patent attorney” in reference to solicitors).

Annotations:

Amendments (Textual) F555 Words in s. 276(1) substituted (1.1.2010) by Legal Services Act 2007 ( c. 29), ss. 208(1), 211, {Sch. 21

para. 76(a)} (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F556 Words in s. 276(2) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 185(4)(a)(i), 211

(with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9) F557 Words in s. 276(2) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 185(4)(a)(ii), 211

(with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9) F558 Words in s. 276(3) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 185(4)(b), 211 (with

ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9) F559 Words in s. 276(4) substituted (1.1.2010) by Legal Services Act 2007 ( c. 29), ss. 208(1), 211, {Sch. 21

para. 76(b)} (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9)

Modifications etc. (not altering text) C108 S. 276(7)(b) amended (E.W.) (1.1.1992) by S.I. 1991/2684 arts. 2, 4, Sch.1 C109 S. 276(7)(b) applied (with modifications) (23.12.2011) by The Legal Services Act 2007 (Designation

as a Licensing Authority) (No. 2) Order 2011 (S.I. 2011/2866), arts. 1(2), 8(1)(2), Sch. 2

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277 Persons entitled to describe themselves as European patent attorneys, &c.

(1) The term “European patent attorney” or “European patent agent” may be used in the following cases without any contravention of section 276.

(2) An individual who is on the European list may— (a) carry on business under a name or other description which contains the words

“European patent attorney” or “European patent agent”, or (b) otherwise describe himself, or permit himself to be described, as a “European

patent attorney” or “European patent agent”.

(3) A partnership of which not less than the prescribed number or proportion of partners is on the European list may—

(a) carry on a business under a name or other description which contains the words “European patent attorneys” or “European patent agents”, or

(b) otherwise describe itself, or permit itself to be described, as a firm which carries on the business of a “European patent attorney” or “European patent agent”.

(4) A body corporate of which not less than the prescribed number or proportion of directors is on the European list may—

(a) carry on a business under a name or other description which contains the words “European patent attorney” or “European patent agent”, or

(b) otherwise describe itself, or permit itself to be described as, a company which carries on the business of a “European patent attorney” or “European patent agent”.

(5) Where the term “European patent attorney” or “European patent agent” may, in accordance with this section, be used in reference to an individual, partnership or body corporate, it is equally permissible to use other expressions in reference to that person, or to his business or place of business, which are likely to be understood as indicating that he is entitled to be described as a “European patent attorney” or “European patent agent.”

278 Use of the term “patent attorney”: supplementary provisions.

(1) The term “patent attorney” may be used in reference to a solicitor, and a firm of solicitors may be described as a firm of “patent attorneys”, without any contravention of section 276.

(2) No offence is committed under the enactments restricting the use of certain expressions in reference to persons not qualified to act as solicitors—

(a) by the use of the term “patent attorney” in reference to a registered patent agent, or

(b) by the use of the term “European patent attorney” in reference to a person on the European list.

(3) The enactments referred to in subsection (2) are section 21 of the M40Solicitors Act 1974, section 31 of the M41Solicitors (Scotland) Act 1980 and Article 22 of the M42Solicitors (Northern Ireland) Order 1976.

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Annotations:

Modifications etc. (not altering text) C110 S. 278(1) applied (with modifications) (23.12.2011) by The Legal Services Act 2007 (Designation as a

Licensing Authority) (No. 2) Order 2011 (S.I. 2011/2866), arts. 1(2), 8(2)(3), Sch. 3

Marginal Citations M40 1974 c. 37. M41 1980 c. 46. M42 S.I. 1976/582 (N.I.12).

279 Power to prescribe conditions, &c. for mixed partnerships and bodies corporate. F560. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F560 S. 279 omitted (1.1.2010) and repealed (1.10.2011) by virtue of Legal Services Act 2007 (c. 29), ss.

185(5), 210, 211, Sch. 23 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i); S.I. 2011/2196, art. 2(1) (h)(iii)

280 Privilege for communications with patent agents.

(1) This section applies to communications as to any matter relating to the protection of any invention, design, technical information, [F561or trade mark], or as to

[F562(a)] any matter involving passing off [F563, and (b) documents, material or information relating to any matter mentioned in

paragraph (a).]

[F564(2) Where a patent attorney acts for a client in relation to a matter mentioned in subsection (1), any communication, document, material or information to which this section applies is privileged from disclosure in like manner as if the patent attorney had at all material times been acting as the client's solicitor.]

(3) In subsection (2) “patent attorney” means— (a) a registered patent [F565attorney] or a person who is on the European list, (b) a partnership entitled to describe itself as a firm of patent [F566attorneys] or as

a firm carrying on the business of a European patent attorney, F567. . . [F568(ba) an unincorporated body (other than a partnership) entitled to describe itself

as a patent attorney, or] (c) a body corporate entitled to describe itself as a patent [F565attorney] or as a

company carrying on the business of a European patent attorney.

(4) F569. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Annotations:

Amendments (Textual) F561 Words in s. 280(1) substituted (31.10.1994) by 1994 c. 26, s. 106(1), Sch. 4 para. 8(3); S.I.

1994/2550, art. 2 F562 Words in s. 280(1) renumbered (1.1.2010) as s. 280(1)(a) by virtue of Legal Services Act 2007 ( c. 29),

ss. 208(1), 211, {Sch. 21 para. 77(a)} (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F563 S. 280(1)(b) and preceding word inserted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1),

211, Sch. 21 para. 77(b) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F564 S. 280(2) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 211, Sch. 21 para.

77(c) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F565 Words in s. 280(3) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 280(1), 211, Sch. 21

para. 77(d)(i) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F566 Word in s. 280(3) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 211, Sch. 21

para. 77(d)(ii) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F567 Word in s. 280(3)(b) repealed (1.10.2011) by Legal Services Act 2007 (c. 29), ss. 210, 211, Sch. 23

(with ss. 29, 192, 193); S.I. 2011/2196, art. 2(1)(h)(iii) F568 S. 280(3)(ba) inserted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 185(6), 211 (with ss. 29, 192,

193); S.I. 2009/3250, art. 2(f)(i) (with art. 9) F569 S. 280(4) omitted (1.1.2010) and repealed (1.10.2011) by virtue of Legal Services Act 2007 (c. 29), ss.

208(1), 210, 211, Sch. 21 para 77(e), Sch. 23 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9); S.I. 2011/2196, art. 2(1)(h)(iii)

281 Power of comptroller to refuse to deal with certain agents.

(1) This section applies to business under the M43Patents Act 1949, the M44Registered Designs Act 1949 or the M45Patents Act 1977.

(2) The Secretary of State may make rules authorising the comptroller to refuse to recognise as agent in respect of any business to which this section applies—

(a) a person who has been convicted of an offence under section 88 of the Patents Act 1949, section 114 of the Patents Act 1977 or section 276 of this Act;

(b) [F570a person] whose name has been erased from and not restored to, or who is suspended from, the register of patent [F571attorneys] on the ground of misconduct;

(c) a person who is found by the Secretary of State to have been guilty of such conduct as would, in the case of [F572 a person] registered in the register of patent [F571attorneys], render [F573the person] liable to have [F574the person's] name erased from the register on the ground of misconduct;

(d) a partnership or body corporate of which one of the partners or directors is a person whom the comptroller could refuse to recognise under paragraph (a), (b) or (c) above.

(3) The rules may contain such incidental and supplementary provisions as appear to the Secretary of State to be appropriate and may, in particular, prescribe circumstances in which a person is or is not to be taken to have been guilty of misconduct.

(4) Rules made under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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(5) The comptroller shall refuse to recognise as agent in respect of any business to which this section applies a person who neither resides nor has a place of business in the United Kingdom, the Isle of Man or another member State of the [F575European Union].

Annotations:

Amendments (Textual) F570 Words in s. 281(2)(b) substituted (1.1.2010) by The Legal Services Act 2007 (Consequential

Amendments) Order 2009 (S.I. 2009/3348), arts. 2(1), 3(2); S.I. 2009/3250, art. 2(b)(i) F571 Words in s. 281(2) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 211, Sch. 21

para. 78 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F572 Words in s. 281(2)(c) substituted (1.1.2010) by The Legal Services Act 2007 (Consequential

Amendments) Order 2009 (S.I. 2009/3348), arts. 2(1), 3(3)(a); S.I. 2009/3250, art. 2(b)(i) F573 Words in s. 281(2)(c) substituted (1.1.2010) by The Legal Services Act 2007 (Consequential

Amendments) Order 2009 (S.I. 2009/3348), arts. 2(1), 3(3)(b); S.I. 2009/3250, art. 2(b)(i) F574 Words in s. 281(2)(c) substituted (1.1.2010) by The Legal Services Act 2007 (Consequential

Amendments) Order 2009 (S.I. 2009/3348), arts. 2(1), 3(3)(c); S.I. 2009/3250, art. 2(b)(i) F575 Words substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 4

Marginal Citations M43 1949 c. 88. M44 1949 c. 87. M45 1977 c. 37.

Trade mark agents

F576282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F576 S. 282 repealed (31.10.1994) by 1994 c. 26, s. 106(2), Sch. 5; S.I. 1994/2550, art. 2

F577283 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F577 S. 283 repealed (31.10.1994) by 1994 c. 26, s. 106(2), Sch. 5; S.I. 1994/2550, art. 2

F578284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Annotations:

Amendments (Textual) F578 S. 284 repealed (31.10.1994) by 1994 c. 26, s. 106(2), Sch. 5; S.I. 1994/2550, art. 2

Supplementary

285 Offences committed by partnerships and bodies corporate.

(1) Proceedings for an offence under this Part alleged to have been committed by a partnership shall be brought in the name of the partnership and not in that of the partners; but without prejudice to any liability of theirs under subsection (4) below.

(2) The following provisions apply for the purposes of such proceedings as in relation to a body corporate—

(a) any rules of court relating to the service of documents; (b) in England, Wales or Northern Ireland, Schedule 3 to the M46Magistrates’

Courts Act 1980 or Schedule 4 to the M47Magistrates’ Courts (Northern Ireland) Order 1981 (procedure on charge of offence).

(3) A fine imposed on a partnership on its conviction in such proceedings shall be paid out of the partnership assets.

(4) Where a partnership is guilty of an offence under this Part, every partner, other than a partner who is proved to have been ignorant of or to have attempted to prevent the commission of the offence, is also guilty of the offence and liable to be proceeded against and punished accordingly.

(5) Where an offence under this Part committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

Annotations:

Marginal Citations M46 1980 c. 43. M47 S.I. 1981/1675 (N.I. 26).

286 Interpretation.

In this Part— “the comptroller” means the Comptroller-General of Patents, Designs and

Trade Marks; “director”, in relation to a body corporate whose affairs are managed by its

members, means any member of the body corporate; “the European list” means the list of professional representatives maintained

by the European Patent Office in pursuance of the European Patent Convention; “registered patent attorney” has the meaning given by section 275 [F579(2)];

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F580. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F579 Word in s. 286 substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 211, Sch. 21

para. 79(b) (with ss. 29, 192, 193); S.I. 2009/2350, art. 2(h) (with art. 9) F580 Definition in s. 286 repealed (31.10.1994) by 1994 c. 26, s. 106(2), Sch. 5; S.I. 1994/2550, art. 2

PART VI

PATENTS

Patents county courts

287 Patents county courts: special jurisdiction.

(1) The Lord Chancellor may [F581, with the concurrence of the Lord Chief Justice,] by order made by statutory instrument designate any county court as a patents county court and confer on it jurisdiction (its “special jurisdiction”) to hear and determine such descriptions of proceedings—

(a) relating to patents or designs, or (b) ancillary to, or arising out of the same subject matter as, proceedings relating

to patents or designs, as may be specified in the order.

(2) The special jurisdiction of a patents county court is exercisable throughout England and Wales, but rules of court may provide for a matter pending in one such court to be heard and determined in another or partly in that and partly in another.

(3) A patents county court may entertain proceedings within its special jurisdiction notwithstanding that no pecuniary remedy is sought.

(4) An order under this section providing for the discontinuance of any of the special jurisdiction of a patents county court may make provision as to proceedings pending in the court when the order comes into operation.

(5) Nothing in this section shall be construed as affecting the ordinary jurisdiction of a county court.

[F582(6) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.]

Annotations:

Amendments (Textual) F581 Words in s. 287(1) inserted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15(1), 148, Sch. 4

para. 200(2); S.I. 2006/1014, art. 2(a), Sch. 1 paras. 10, 11(r) F582 S. 287(6) inserted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15(1), 148, Sch. 4 para.

200(3); S.I. 2006/1014, art. 2(a), Sch. 1 paras. 10, 11(r)

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Modifications etc. (not altering text) C111 S. 287 applied (1.7.1999) by S.I. 1999/1618, reg. 7(6)(a)

288 Financial limits in relation to proceedings within special jurisdiction of patents county court.

(1) Her Majesty may by Order in Council provide for limits of amount or value in relation to any description of proceedings within the special jurisdiction of a patents county court.

(2) If a limit is imposed on the amount of a claim of any description and the plaintiff has a cause of action for more than that amount, he may abandon the excess; in which case a patents county court shall have jurisdiction to hear and determine the action, but the plaintiff may not recover more than that amount.

(3) Where the court has jurisdiction to hear and determine an action by virtue of subsection (2), the judgment of the court in the action is in full discharge of all demands in respect of the cause of action, and entry of the judgment shall be made accordingly.

(4) If the parties agree, by a memorandum signed by them or by their respective solicitors or other agents, that a patents county court shall have jurisdiction in any proceedings, that court shall have jurisdiction to hear and determine the proceedings notwithstanding any limit imposed under this section.

(5) No recommendation shall be made to Her Majesty to make an Order under this section unless a draft of the Order has been laid before and approved by a resolution of each House of Parliament.

Annotations:

Modifications etc. (not altering text) C112 S. 288(4) amended (E.W.)(1.1.1992) by S.I. 1991/2684 arts. 2, 4 and Sch.1 C113 S. 288(4) applied (with modifications) (23.12.2011) by The Legal Services Act 2007 (Designation as a

Licensing Authority) (No. 2) Order 2011 (S.I. 2011/2866), arts. 1(2), 8(1)(2), Sch. 2

289 Transfer of proceedings between High Court and patents county court.

(1) No order shall be made under section 41 of the M48County Courts Act 1984 (power of High Court to order proceedings to be transferred from the county court) in respect of proceedings within the special jurisdiction of a patents county court.

(2) In considering in relation to proceedings within the special jurisdiction of a patents county court whether an order should be made under section 40 or 42 of the County Courts Act 1984 (transfer of proceedings from or to the High Court), the court shall have regard to the financial position of the parties and may order the transfer of the proceedings to a patents county court or, as the case may be, refrain from ordering their transfer to the High Court notwithstanding that the proceedings are likely to raise an important question of fact or law.

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Annotations:

Marginal Citations M48 1984 c. 28.

[F583290 Limitation of costs where pecuniary claim could have been brought in patents county court.

(1) Where an action is commenced in the High Court which could have been commenced in a patents county court and in which a claim for a pecuniary remedy is made, then, subject to the provisions of this section, if the plaintiff recovers less than the prescribed amount, he is not entitled to recover any more costs than those to which he would have been entitled if the action had been brought in the county court.

(2) For this purpose a plaintiff shall be treated as recovering the full amount recoverable in respect of his claim without regard to any deduction made in respect of matters not falling to be taken into account in determining whether the action could have been commenced in a patents county court.

(3) This section does not affect any question as to costs if it appears to the High Court that there was reasonable ground for supposing the amount recoverable in respect of the plaintiff’s claim to be in excess of the prescribed amount.

(4) The High Court, if satisfied that there was sufficient reason for bringing the action in the High Court, may make an order allowing the costs or any part of the costs on the High Court scale or on such one of the county court scales as it may direct.

(5) This section does not apply to proceedings brought by the Crown.

(6) In this section “the prescribed amount” means such amount as may be prescribed by Her Majesty for the purposes of this section by Order in Council.

(7) No recommendation shall be made to Her Majesty to make an Order under this section unless a draft of the Order has been laid before and approved by a resolution of each House of Parliament.]

Annotations:

Amendments (Textual) F583 S. 290 repealed (prosp.) by Courts and Legal Services Act 1990 (c. 41, SIF 37), ss. 124(3), 125(7),

Sch. 20

291 Proceedings in patents county court.

(1) Where a county court is designated a patents county court, the [F584Lord Chief Justice shall, after consulting the Lord Chancellor,] nominate a person entitled to sit as a judge of that court as the patents judge.

(2) County court rules shall make provision for securing that, so far as is practicable and appropriate—

(a) proceedings within the special jurisdiction of a patents county court are dealt with by the patents judge, and

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(b) the judge, rather than a registrar or other officer of the court, deals with interlocutory matters in the proceedings.

(3) County court rules shall make provision empowering a patents county court in proceedings within its special jurisdiction, on or without the application of any party—

(a) to appoint scientific advisers or assessors to assist the court, or (b) to order the Patent Office to inquire into and report on any question of fact

or opinion.

(4) Where the court exercises either of those powers on the application of a party, the remuneration or fees payable to the Patent Office shall be at such rate as may be determined in accordance with county court rules and shall be costs of the proceedings unless otherwise ordered by the judge.

(5) Where the court exercises either of those powers of its own motion, the remuneration or fees payable to the Patent Office shall be at such rate as may be determined by the Lord Chancellor with the approval of the Treasury and shall be paid out of money provided by Parliament.

[F585(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (1).]

Annotations:

Amendments (Textual) F584 Words in s. 291(1) substituted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15(1), 148,

Sch. 4 para. 201(2); S.I. 2006/1014, art. 2(a), Sch. 1 paras. 10, 11(r) F585 S. 291(6) inserted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15(1), 148, Sch. 4 para.

201(3); S.I. 2006/1014, art. 2(a), Sch. 1 paras. 10, 11(r)

292 Rights and duties of registered patent agents in relation to proceedings in patents county court.

F586. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F586 S. 292 repealed (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 210, 211, Sch. 21 para. 80,

Sch. 23 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h)(i)(vi) (with art. 9)

Licences of right in respect of certain patents

293 Restriction of acts authorised by certain licences.

In paragraph 4(2)(c) of Schedule 1 to the M49Patents Act 1977 (licences to be available as of right where term of existing patent extended), at the end insert “, but subject to paragraph 4A below”, and after that paragraph insert—

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“4A (1) If the proprietor of a patent for an invention which is a product files a declaration with the Patent Office in accordance with this paragraph, the licences to which persons are entitled by virtue of paragraph 4(2)(c) above shall not extend to a use of the product which is excepted by or under this paragraph.

(2) Pharmaceutical use is excepted, that is— (a) use as a medicinal product within the meaning of the Medicines

Act 1968, and (b) the doing of any other act mentioned in section 60(1)(a) above with

a view to such use.

(3) The Secretary of State may by order except such other uses as he thinks fit; and an order may—

(a) specify as an excepted use any act mentioned in section 60(1)(a) above, and

(b) make different provision with respect to acts done in different circumstances or for different purposes.

(4) For the purposes of this paragraph the question what uses are excepted, so far as that depends on—

(a) orders under section 130 of the Medicines Act 1968 (meaning of “medicinal product”), or

(b) orders under sub-paragraph (3) above, shall be determined in relation to a patent at the beginning of the sixteenth year of the patent.

(5) A declaration under this paragraph shall be in the prescribed form and shall be filed in the prescribed manner and within the prescribed time limits.

(6) A declaration may not be filed— (a) in respect of a patent which has at the commencement of

section 293 of the Copyright, Designs and Patents Act 1988 passed the end of its fifteenth year; or

(b) if at the date of filing there is— (i) an existing licence for any description of excepted use of

the product, or (ii) an outstanding application under section 46(3)(a) or (b)

above for the settlement by the comptroller of the terms of a licence for any description of excepted use of the product,

and, in either case, the licence took or is to take effect at or after the end of the sixteenth year of the patent.

(7) Where a declaration has been filed under this paragraph in respect of a patent—

(a) section 46(3)(c) above (restriction of remedies for infringement where licences available as of right) does not apply to an infringement of the patent in so far as it consists of the excepted use of the product after the filing of the declaration; and

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(b) section 46(3)(d) above (abatement of renewal fee if licences available as of right) does not apply to the patent.”.

Annotations:

Marginal Citations M49 1977 c. 37.

294 When application may be made for settlement of terms of licence.

In Schedule 1 to the M50Patents Act 1977, after the paragraph inserted by section 293 above, insert—

“4B (1) An application under section 46(3)(a) or (b) above for the settlement by the comptroller of the terms on which a person is entitled to a licence by virtue of paragraph 4(2)(c) above is ineffective if made before the beginning of the sixteenth year of the patent.

(2) This paragraph applies to applications made after the commencement of section 294 of the Copyright, Designs and Patents Act 1988 and to any application made before the commencement of that section in respect of a patent which has not at the commencement of that section passed the end of its fifteenth year.”.

Annotations:

Marginal Citations M50 1977 c. 37.

Patents: miscellaneous amendments

295 Patents: miscellaneous amendments.

The M51Patents Act 1949 and the M52Patents Act 1977 are amended in accordance with Schedule 5.

Annotations:

Marginal Citations M51 1949 c. 87. M52 1977 c. 37.

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PART VII

MISCELLANEOUS AND GENERAL

[F587Circumvention of protection measures]

Annotations:

Amendments (Textual) F587 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

[F588296 Devices designed to circumvent copy-protection.

(1) This section applies where— (a) a technical device has been applied to a computer program; and (b) a person (A) knowing or having reason to believe that it will be used to make

infringing copies— (i) manufactures for sale or hire, imports, distributes, sells or lets for

hire, offers or exposes for sale or hire, advertises for sale or hire or has in his possession for commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device; or

(ii) publishes information intended to enable or assist persons to remove or circumvent the technical device.

(2) The following persons have the same rights against A as a copyright owner has in respect of an infringement of copyright—

(a) a person— (i) issuing to the public copies of, or

(ii) communicating to the public, the computer program to which the technical device has been applied;

(b) the copyright owner or his exclusive licensee, if he is not the person specified in paragraph (a);

(c) the owner or exclusive licensee of any intellectual property right in the technical device applied to the computer program.

(3) The rights conferred by subsection (2) are concurrent, and sections 101(3) and 102(1) to (4) apply, in proceedings under this section, in relation to persons with concurrent rights as they apply, in proceedings mentioned in those provisions, in relation to a copyright owner and exclusive licensee with concurrent rights.

(4) Further, the persons in subsection (2) have the same rights under section 99 or 100 (delivery up or seizure of certain articles) in relation to any such means as is referred to in subsection (1) which a person has in his possession, custody or control with the intention that it should be used to facilitate the unauthorised removal or circumvention of any technical device which has been applied to a computer program, as a copyright owner has in relation to an infringing copy.

(5) The rights conferred by subsection (4) are concurrent, and section 102(5) shall apply, as respects anything done under section 99 or 100 by virtue of subsection (4), in

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relation to persons with concurrent rights as it applies, as respects anything done under section 99 or 100, in relation to a copyright owner and exclusive licensee with concurrent rights.

(6) In this section references to a technical device in relation to a computer program are to any device intended to prevent or restrict acts that are not authorised by the copyright owner of that computer program and are restricted by copyright.

(7) The following provisions apply in relation to proceedings under this section as in relation to proceedings under Part 1 (copyright)—

(a) sections 104 to 106 of this Act (presumptions as to certain matters relating to copyright); and

(b) section 72 of the [F589Senior Courts Act 1981], section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self- incrimination in certain proceedings relating to intellectual property);

and section 114 of this Act applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (4).

(8) Expressions used in this section which are defined for the purposes of Part 1 of this Act (copyright) have the same meaning as in that Part.]

Annotations:

Amendments (Textual) F588 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40) F589 S. 296(7)(b): words wherever they occur in any enactment substituted (1.10.2009) by virtue of

Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

[F590296ZACircumvention of technological measures

(1) This section applies where— (a) effective technological measures have been applied to a copyright work other

than a computer program; and (b) a person (B) does anything which circumvents those measures knowing, or

with reasonable grounds to know, that he is pursuing that objective.

(2) This section does not apply where a person, for the purposes of research into cryptography, does anything which circumvents effective technological measures unless in so doing, or in issuing information derived from that research, he affects prejudicially the rights of the copyright owner.

(3) The following persons have the same rights against B as a copyright owner has in respect of an infringement of copyright—

(a) a person— (i) issuing to the public copies of, or

(ii) communicating to the public, the work to which effective technological measures have been applied; and

(b) the copyright owner or his exclusive licensee, if he is not the person specified in paragraph (a).

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(4) The rights conferred by subsection (3) are concurrent, and sections 101(3) and 102(1) to (4) apply, in proceedings under this section, in relation to persons with concurrent rights as they apply, in proceedings mentioned in those provisions, in relation to a copyright owner and exclusive licensee with concurrent rights.

(5) The following provisions apply in relation to proceedings under this section as in relation to proceedings under Part 1 (copyright)—

(a) sections 104 to 106 of this Act (presumptions as to certain matters relating to copyright); and

(b) section 72 of the [F591Senior Courts Act 1981], section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self- incrimination in certain proceedings relating to intellectual property).

(6) Subsections (1) to (4) and (5)(b) and any other provision of this Act as it has effect for the purposes of those subsections apply, with any necessary adaptations, to rights in performances, publication right and database right.

(7) The provisions of regulation 22 (presumptions relevant to database right) of the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) apply in proceedings brought by virtue of this section in relation to database right.

Annotations:

Amendments (Textual) F590 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40) F591 S. 296ZA(5)(b): words wherever they occur in any enactment substituted (1.10.2009) by virtue of

Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

296ZB Devices and services designed to circumvent technological measures

(1) A person commits an offence if he— (a) manufactures for sale or hire, or (b) imports otherwise than for his private and domestic use, or (c) in the course of a business—

(i) sells or lets for hire, or (ii) offers or exposes for sale or hire, or

(iii) advertises for sale or hire, or (iv) possesses, or (v) distributes, or

(d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner,

any device, product or component which is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures.

(2) A person commits an offence if he provides, promotes, advertises or markets— (a) in the course of a business, or

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(b) otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner,

a service the purpose of which is to enable or facilitate the circumvention of effective technological measures.

(3) Subsections (1) and (2) do not make unlawful anything done by, or on behalf of, law enforcement agencies or any of the intelligence services—

(a) in the interests of national security; or (b) for the purpose of the prevention or detection of crime, the investigation of an

offence, or the conduct of a prosecution, and in this subsection “intelligence services” has the meaning given in section 81 of the Regulation of Investigatory Powers Act 2000.

(4) A person guilty of an offence under subsection (1) or (2) is liable— (a) on summary conviction, to imprisonment for a term not exceeding three

months, or to a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding

two years, or both.

(5) It is a defence to any prosecution for an offence under this section for the defendant to prove that he did not know, and had no reasonable ground for believing, that—

(a) the device, product or component; or (b) the service,

enabled or facilitated the circumvention of effective technological measures.

296ZC Devices and services designed to circumvent technological measures: search warrants and forfeiture

(1) The provisions of sections 297B (search warrants), 297C (forfeiture of unauthorised decoders: England and Wales or Northern Ireland) and 297D (forfeiture of unauthorised decoders: Scotland) apply to offences under section 296ZB with the following modifications.

(2) In section 297B the reference to an offence under section 297A(1) shall be construed as a reference to an offence under section 296ZB(1) or (2).

(3) In sections 297C(2)(a) and 297D(15) the references to an offence under section 297A(1) shall be construed as a reference to an offence under section 296ZB(1).

(4) In sections 297C and 297D references to unauthorised decoders shall be construed as references to devices, products or components for the purpose of circumventing effective technological measures.

296ZD Rights and remedies in respect of devices and services designed to circumvent technological measures

(1) This section applies where— (a) effective technological measures have been applied to a copyright work other

than a computer program; and (b) a person (C) manufactures, imports, distributes, sells or lets for hire, offers or

exposes for sale or hire, advertises for sale or hire, or has in his possession for

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commercial purposes any device, product or component, or provides services which—

(i) are promoted, advertised or marketed for the purpose of the circumvention of, or

(ii) have only a limited commercially significant purpose or use other than to circumvent, or

(iii) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of,

those measures.

(2) The following persons have the same rights against C as a copyright owner has in respect of an infringement of copyright—

(a) a person— (i) issuing to the public copies of, or

(ii) communicating to the public, the work to which effective technological measures have been applied;

(b) the copyright owner or his exclusive licensee, if he is not the person specified in paragraph (a); and

(c) the owner or exclusive licensee of any intellectual property right in the effective technological measures applied to the work.

(4) Further, the persons in subsection (2) have the same rights under section 99 or 100 (delivery up or seizure of certain articles) in relation to any such device, product or component which a person has in his possession, custody or control with the intention that it should be used to circumvent effective technological measures, as a copyright owner has in relation to any infringing copy.

(5) The rights conferred by subsection (4) are concurrent, and section 102(5) shall apply, as respects anything done under section 99 or 100 by virtue of subsection (4), in relation to persons with concurrent rights as it applies, as respects anything done under section 99 or 100, in relation to a copyright owner and exclusive licensee with concurrent rights.

(6) The following provisions apply in relation to proceedings under this section as in relation to proceedings under Part 1 (copyright)—

(a) sections 104 to 106 of this Act (presumptions as to certain matters relating to copyright); and

(b) section 72 of the [F592Senior Courts Act 1981], section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self- incrimination in certain proceedings relating to intellectual property);

and section 114 of this Act applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (4).

(7) In section 97(1) (innocent infringement of copyright) as it applies to proceedings for infringement of the rights conferred by this section, the reference to the defendant not knowing or having reason to believe that copyright subsisted in the work shall be

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construed as a reference to his not knowing or having reason to believe that his acts enabled or facilitated an infringement of copyright.

(8) Subsections (1) to (5), (6)(b) and (7) and any other provision of this Act as it has effect for the purposes of those subsections apply, with any necessary adaptations, to rights in performances, publication right and database right.

(9) The provisions of regulation 22 (presumptions relevant to database right) of the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) apply in proceedings brought by virtue of this section in relation to database right.

Annotations:

Amendments (Textual) F592 S. 296ZD(6)(b): words wherever they occur in any enactment substituted (1.10.2009) by virtue of

Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

296ZE Remedy where effective technological measures prevent permitted acts

(1) In this section— “permitted act” means an act which may be done in relation to copyright

works, notwithstanding the subsistence of copyright, by virtue of a provision of this Act listed in Part 1 of Schedule 5A;

“voluntary measure or agreement” means— (a) any measure taken voluntarily by a copyright owner, his exclusive

licensee or a person issuing copies of, or communicating to the public, a work other than a computer program, or

(b) any agreement between a copyright owner, his exclusive licensee or a person issuing copies of, or communicating to the public, a work other than a computer program and another party,

the effect of which is to enable a person to carry out a permitted act.

(2) Where the application of any effective technological measure to a copyright work other than a computer program prevents a person from carrying out a permitted act in relation to that work then that person or a person being a representative of a class of persons prevented from carrying out a permitted act may issue a notice of complaint to the Secretary of State.

(3) Following receipt of a notice of complaint, the Secretary of State may give to the owner of that copyright work or an exclusive licensee such directions as appear to the Secretary of State to be requisite or expedient for the purpose of—

(a) establishing whether any voluntary measure or agreement relevant to the copyright work the subject of the complaint subsists; or

(b) (where it is established there is no subsisting voluntary measure or agreement) ensuring that the owner or exclusive licensee of that copyright work makes available to the complainant the means of carrying out the permitted act the subject of the complaint to the extent necessary to so benefit from that permitted act.

(4) The Secretary of State may also give directions— (a) as to the form and manner in which a notice of complaint in subsection (2)

may be delivered to him;

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(b) as to the form and manner in which evidence of any voluntary measure or agreement may be delivered to him; and

and shall publish directions given under this subsection in such manner as in his opinion will secure adequate publicity for them.

(5) It shall be the duty of any person to whom a direction is given under subsection (3) (a) or (b) to give effect to that direction.

(6) The obligation to comply with a direction given under subsection (3)(b) is a duty owed to the complainant or, where the complaint is made by a representative of a class of persons, to that representative and to each person in the class represented; and a breach of the duty is actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty).

(7) Any direction under this section may be varied or revoked by a subsequent direction under this section.

(8) Any direction given under this section shall be in writing.

(9) This section does not apply to copyright works made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.

(10) This section applies only where a complainant has lawful access to the protected copyright work, or where the complainant is a representative of a class of persons, where the class of persons have lawful access to the work.

(11) Subsections (1) to (10) apply with any necessary adaptations to— (a) rights in performances, and in this context the expression “permitted act”

refers to an act that may be done by virtue of a provision of this Act listed in Part 2 of Schedule 5A;

(b) database right, and in this context the expression “permitted act” refers to an act that may be done by virtue of a provision of this Act listed in Part 3 of Schedule 5A; and

296ZF Interpretation of sections 296ZA to 296ZE

(1) In sections 296ZA to 296ZE, “technological measures” are any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer program.

(2) Such measures are “effective” if the use of the work is controlled by the copyright owner through—

(a) an access control or protection process such as encryption, scrambling or other transformation of the work, or

(b) a copy control mechanism, which achieves the intended protection.

(3) In this section, the reference to—

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(a) protection of a work is to the prevention or restriction of acts that are not authorised by the copyright owner of that work and are restricted by copyright; and

(b) use of a work does not extend to any use of the work that is outside the scope of the acts restricted by copyright.

(4) Expressions used in sections 296ZA to 296ZE which are defined for the purposes of Part 1 of this Act (copyright) have the same meaning as in that Part.]

[F593Rights management information

Annotations:

Amendments (Textual) F593 S. 296ZG and cross-heading inserted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 25 (with regs. 31-40)

296ZG Electronic rights management information

(1) This section applies where a person (D), knowingly and without authority, removes or alters electronic rights management information which—

(a) is associated with a copy of a copyright work, or (b) appears in connection with the communication to the public of a copyright

work, and where D knows, or has reason to believe, that by so doing he is inducing, enabling, facilitating or concealing an infringement of copyright.

(2) This section also applies where a person (E), knowingly and without authority, distributes, imports for distribution or communicates to the public copies of a copyright work from which electronic rights management information—

(a) associated with the copies, or (b) appearing in connection with the communication to the public of the work,

has been removed or altered without authority and where E knows, or has reason to believe, that by so doing he is inducing, enabling, facilitating or concealing an infringement of copyright.

(3) A person issuing to the public copies of, or communicating, the work to the public, has the same rights against D and E as a copyright owner has in respect of an infringement of copyright.

(4) The copyright owner or his exclusive licensee, if he is not the person issuing to the public copies of, or communicating, the work to the public, also has the same rights against D and E as he has in respect of an infringement of copyright.

(5) The rights conferred by subsections (3) and (4) are concurrent, and sections 101(3) and 102(1) to (4) apply, in proceedings under this section, in relation to persons with concurrent rights as they apply, in proceedings mentioned in those provisions, in relation to a copyright owner and exclusive licensee with concurrent rights.

(6) The following provisions apply in relation to proceedings under this section as in relation to proceedings under Part 1 (copyright)—

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(a) sections 104 to 106 of this Act (presumptions as to certain matters relating to copyright); and

(b) section 72 of the [F594Senior Courts Act 1981], section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self- incrimination in certain proceedings relating to intellectual property).

(7) In this section— (a) expressions which are defined for the purposes of Part 1 of this Act (copyright)

have the same meaning as in that Part; and (b) “rights management information” means any information provided by the

copyright owner or the holder of any right under copyright which identifies the work, the author, the copyright owner or the holder of any intellectual property rights, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information.

(8) Subsections (1) to (5) and (6)(b), and any other provision of this Act as it has effect for the purposes of those subsections, apply, with any necessary adaptations, to rights in performances, publication right and database right.

Annotations:

Amendments (Textual) F594 S. 296ZG(6)(b): words wherever they occur in any enactment substituted (1.10.2009) by virtue of

Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

[F595Computer programs

Annotations:

Amendments (Textual) F595 Cross heading and s. 296A inserted (1.1.1993) by S.I. 1992/3233, reg.11

F596296AAvoidance of certain terms.

(1) Where a person has the use of a computer program under an agreement, any term or condition in the agreement shall be void in so far as it purports to prohibit or restrict—

(a) the making of any back up copy of the program which it is necessary for him to have for the purposes of the agreed use;

(b) where the conditions in section 50B(2) are met, the decompiling of the program; or

[F597(c) the observing, studying or testing of the functioning of the program in accordance with section 50BA.]

(2) In this section, decompile, in relation to a computer program, has the same meaning as in section 50B]

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Annotations:

Amendments (Textual) F596 S. 296A inserted (1.1.1993) by S.I. 1992/3233, reg.11. F597 S. 296A(1)(c) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 15(4) (with regs. 31-40)

[F598Databases]

Annotations:

Amendments (Textual) F598 S. 296B and crossheading inserted (1.1.1998) by S.I. 1997/3032, reg. 10 (with Pt. IV)

[F599296BAvoidance of certain terms relating to databases

Where under an agreement a person has a right to use a database or part of a database, any term or condition in the agreement shall be void in so far as it purports to prohibit or restrict the performance of any act which would but for section 50D infringe the copyright in the database.]

Annotations:

Amendments (Textual) F599 S. 296B inserted (1.1.1998) by S.I. 1997/3032, reg. 10 (with Pt. IV)

Fraudulent reception of transmissions

297 Offence of fraudulently receiving programmes.

(1) A person who dishonestly receives a programme included in a broadcasting F600. . . service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(2) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

In relation to a body corporate whose affairs are managed by its members “director” means a member of the body corporate.

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Annotations:

Amendments (Textual) F600 Words in s. 297(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F601297AUnauthorised decoders.

(1) A person commits an offence if he— (a) makes, imports, distributes, sells or lets for hire or offers or exposes for sale

or hire any unauthorised decoder; (b) has in his possession for commercial purposes any unauthorised decoder; (c) instals, maintains or replaces for commercial purposes any unauthorised

decoder; or (d) advertises any unauthorised decoder for sale or hire or otherwise promotes

any unauthorised decoder by means of commercial communications.

(2) A person guilty of an offence under subsection (1) is liable— [F602(a) on summary conviction, to imprisonment for a term not exceeding six months,

or to a fine not exceeding the statutory maximum, or to both;]] (b) on conviction on indictment, to imprisonment for a term not exceeding

[F603ten] years, or to a fine, or to both.

(3) It is a defence to any prosecution for an offence under this section for the defendant to prove that he did not know, and had no reasonable ground for believing, that the decoder was an unauthorised decoder.

(4) In this section—

“apparatus” includes any device, component or electronic data (including software);

“conditional access technology” means any technical measure or arrangement whereby access to encrypted transmissions in an intelligbile form is made conditional on prior individual authorisation;

“decoder” means any apparatus which is designed or adapted to enable (whether on its own or with any other apparatus) an encrypted transmission to be decoded;

“encrypted” includes subjected to scrambling or the operation of cryptographic envelopes, electronic locks, passwords or any other analogous application;

“transmission” means— (a) any programme included in a broadcasting F604. . . service which is provided

from a place in the United Kingdom or any other member State; or (b) an information society service (within the meaning of Directive 98/34/EC

of the European Parliament and of the Council of 22nd June 1998 F605, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20th July 1998 F606) which is provided from a place in the United Kingdom or any other member State; and

“unauthorised”, in relation to a decoder, means that the decoder is designed or adapted to enable an encrypted transmission, or any service of which it forms part, to be accessed in an intelligible form without payment of the fee (however imposed) which

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the person making the transmission, or on whose behalf it is made, charges for accessing the transmission or service (whether by the circumvention of any conditional access technology related to the transmission or service or by any other means).

Annotations:

Amendments (Textual) F601 S. 297A substituted (28.5.2000) by S.I. 2000/1175, art. 2(2) F602 S. 297A(2)(a) substituted (20.11.2002) by 2002 c. 25, s. 1(4)(a)(5); S.I. 2002/2749, art. 2 F603 Word in s. 297A(2)(b) substituted (20.11.2002) by 2002 c. 25, s. 1(4)(b)(5); S.I. 2002/2749, art. 2 F604 Words in s. 297A(4) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F605 O.J. L204, 21.7.98, p.37 F606 O.J. L217, 5.8.98, p.18

[F607297BSearch warrants

(a) that an offence under section 297A(1) has been or is about to be committed in any premises, and

(b) that evidence that such an offence has been or is about to be committed is in those premises,

he may issue a warrant authorising a constable to enter and search the premises, using such reasonable force as is necessary.

(2) The power conferred by subsection (1) does not, in England and Wales, extend to authorising a search for material of the kinds mentioned in section 9(2) of the Police and Criminal Evidence Act 1984 (c. 60) (certain classes of personal or confidential material).

(3) A warrant under subsection (1)— (a) may authorise persons to accompany any constable executing the warrant, and (b) remains in force for [F608three months] from the date of its issue.

(4) In executing a warrant issued under subsection (1) a constable may seize an article if he reasonably believes that it is evidence that any offence under section 297A(1) has been or is about to be committed.

(5) In this section “premises” includes land, buildings, fixed or moveable structures, vehicles, vessels, aircraft and hovercraft.]

Annotations:

Amendments (Textual) F607 S. 297B inserted (20.11.2002) by 2002 c. 25, s. 2(4); S.I. 2002/2749, art. 2 F608 Words in s. 297B(3)(b) substituted (1.1.2006) by Serious Organised Crime and Police Act 2005

(c. 15), ss. 174(1), 178, Sch. 16 para. 6(4); S.I. 2004/3495, art. 2(1)(s) (subject to art. 2(2))

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[F609297CForfeiture of unauthorised decoders: England and Wales or Northern Ireland

(1) In England and Wales or Northern Ireland where unauthorised decoders have come into the possession of any person in connection with the investigation or prosecution of a relevant offence, that person may apply under this section for an order for the forfeiture of the unauthorised decoders.

(2) For the purposes of this section “relevant offence” means— (a) an offence under section 297A(1) (criminal liability for making, importing,

etc. unauthorised decoders), (b) an offence under the Trade Descriptions Act 1968, or (c) an offence involving dishonesty or deception.

(3) An application under this section may be made— (a) where proceedings have been brought in any court for a relevant offence

relating to some or all of the unauthorised decoders, to that court, or (b) where no application for the forfeiture of the unauthorised decoders has been

made under paragraph (a), by way of complaint to a magistrates’ court.

(4) On an application under this section, the court shall make an order for the forfeiture of any unauthorised decoders only if it is satisfied that a relevant offence has been committed in relation to the unauthorised decoders.

(5) A court may infer for the purposes of this section that such an offence has been committed in relation to any unauthorised decoders if it is satisfied that such an offence has been committed in relation to unauthorised decoders which are representative of the unauthorised decoders in question (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

(6) Any person aggrieved by an order made under this section by a magistrates’ court, or by a decision of such a court not to make such an order, may appeal against that order or decision—

(a) in England and Wales, to the Crown Court, or (b) in Northern Ireland, to the county court.

(8) Subject to subsection (9), where any unauthorised decoders are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.

(9) On making an order under this section the court may direct that the unauthorised decoders to which the order relates shall (instead of being destroyed) be forfeited to a person who has rights or remedies under section 298 in relation to the unauthorised decoders in question, or dealt with in such other way as the court considers appropriate.]

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Annotations:

Amendments (Textual) F609 Ss. 297C, 297D inserted (20.11.2002) by 2002 c. 25, s. 5; S.I. 2002/2749, art. 2

F610297DForfeiture of unauthorised decoders: Scotland

(1) In Scotland the court may make an order under this section for the forfeiture of unauthorised decoders.

(2) An order under this section may be made— (a) on an application by the procurator-fiscal made in the manner specified in

section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) where a person is convicted of a relevant offence, in addition to any other

penalty which the court may impose.

(3) On an application under subsection (2)(a), the court shall make an order for the forfeiture of any unauthorised decoders only if it is satisfied that a relevant offence has been committed in relation to the unauthorised decoders.

(4) The court may infer for the purposes of this section that such an offence has been committed in relation to any unauthorised decoders if it is satisfied that such an offence has been committed in relation to unauthorised decoders which are representative of the unauthorised decoders in question (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

(5) The procurator-fiscal making the application under subsection (2)(a) shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the unauthorised decoders to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the unauthorised decoders should not be forfeited.

(7) Any person upon whom notice is served under subsection (5) and any other person claiming to be the owner of, or otherwise to have an interest in, unauthorised decoders to which an application under this section relates shall be entitled to appear at the hearing of the application to show cause why the unauthorised decoders should not be forfeited.

(8) The court shall not make an order following an application under subsection (2)(a)— (a) if any person on whom notice is served under subsection (5) does not appear,

unless service of the notice on that person is proved, or (b) if no notice under subsection (5) has been served, unless the court is satisfied

that in the circumstances it was reasonable not to serve such notice.

(9) Where an order for the forfeiture of any unauthorised decoders is made following an application under subsection (2)(a), any person who appeared, or was entitled to appear, to show cause why the unauthorised decoders should not be forfeited may, within 21 days of the making of the order, appeal to the High Court by Bill of Suspension.

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(10) Section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 shall apply to an appeal under subsection (9) as it applies to a stated case under Part 2 of that Act.

(11) An order following an application under subsection (2)(a) shall not take effect— (a) until the end of the period of 21 days beginning with the day after the day on

which the order is made, or (b) if an appeal is made under subsection (9) above within that period, until the

appeal is determined or abandoned.

(12) An order under subsection (2)(b) shall not take effect— (a) until the end of the period within which an appeal against the order could be

brought under the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) if an appeal is made within that period, until the appeal is determined or

abandoned.

(13) Subject to subsection (14), where any unauthorised decoders are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.

(14) On making an order under this section the court may direct that the unauthorised decoders to which the order relates shall (instead of being destroyed) be forfeited to a person who has rights or remedies under section 298 in relation to the unauthorised decoders in question, or dealt with in such other way as the court considers appropriate.

(15) For the purposes of this section— “relevant offence” means an offence under section 297A(1) (criminal

liability for making, importing, etc. unauthorised decoders), or under the Trade Descriptions Act 1968 (c. 29) or any offence involving dishonesty or deception;

“the court” means— (a) in relation to an order made on an application under subsection (2)(a),

the sheriff, and (b) in relation to an order made under subsection (2)(b), the court which

imposed the penalty.

Annotations:

Amendments (Textual) F610 Ss. 297C, 297D inserted (20.11.2002) by 2002 c. 25, s. 5; S.I. 2002/2749, art. 2

[F611298 Rights and remedies in respect of apparatus, &c. for unauthorised reception of transmissions.

(1) A person who— (a) makes charges for the reception of programmes included in a broadcasting

F612. . . service provided from a place in the United Kingdom or any other member State,

(b) sends encrypted tranmissions of any other description from a place in the United Kingdom or any other member State, or

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is entitled to the following rights and remedies.

(2) He has the same rights and remedies against a person— (a) who—

(i) makes, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire,

(ii) has in his possession for commercial purposes, or (iii) instals, maintains or replaces for commercial purposes,

any apparatus designed or adapted to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do so, or

(b) who publishes or otherwise promotes by means of commercial communications any information which is calculated to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do so,

as a copyright owner has in respect of an infringement of copyright.

(3) Further, he has the same rights under section 99 or 100 (delivery up or seizure of certain articles) in relation to any such apparatus as a copyright owner has in relation to an infringing copy.

(4) Section 72 of the M53[F613Senior Courts Act 1981], section 15 of the M54Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the M55Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property) apply to proceedings under this section as to proceedings under Part I of this Act (copyright).

(5) In section 97(1) (innocent infringement of copyright) as it applies to proceedings for infringement of the rights conferred by this section, the reference to the defendant not knowing or having reason to believe that copyright subsisted in the work shall be construed as a reference to his not knowing or having reason to believe that his acts infringed the rights conferred by this section.

(6) Section 114 applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (3) above.

(7) In this section “apparatus”, “conditional access technology” and “encrypted” have the same meanings as in section 297A, “transmission” includes transmissions as defined in that section and “conditional access services” means services comprising the provision of conditional access technology.]

Annotations:

Amendments (Textual) F611 S. 298 substituted (25.5.2000) by S.I. 2000/1175, art. 2(3) F612 Words in s. 298(1)(a) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F613 S. 298(4): words wherever they occur in any enactment substituted (1.10.2009) by virtue of

Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

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Marginal Citations M53 1981 c. 54. M54 1985 c. 37. M55 1978 c. 23.

299 Supplementary provisions as to fraudulent reception.

(1) Her Majesty may by Order in Council— (a) provide that section 297 applies in relation to programmes included in services

provided from a country or territory outside the United Kingdom, and (b) provide that section 298 applies in relation to such programmes and to

encrypted transmissions sent from such a country or territory. F614(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A statutory instrument containing an Order in Council under subsection (1) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) Where sections 297 and 298 apply in relation to a broadcasting service F615. . . , they also apply to any service run for the person providing that service, or a person providing programmes for that service, which consists wholly or mainly in the sending by means of a telecommunications system of sounds or visual images, or both.

(5) In sections 297 [F616, 297A] and 298, and this section, “programme”[F617and “broadcasting”], and related expressions, have the same meaning as in Part I (copyright).

Annotations:

Amendments (Textual) F614 S. 299(2) repealed by Broadcasting Act 1990 (c. 42, SIF 96), ss. 179(2)(a), 203(3), Sch. 21 F615 Words in s. 299(4) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F616 S. 299(5): ", 297A" inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 179(2)(b) F617 Words in s. 299(5) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(3) (with regs. 31-40)

Fraudulent application or use of trade mark

F618300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F618 S. 300 repealed (31.10.1994) by 1994 c. 26, s. 106(2), Sch. 5; S.I. 1994/2550, art. 2

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Provisions for the benefit of the Hospital for Sick Children

301 Provisions for the benefit of the Hospital for Sick Children.

The provisions of Schedule 6 have effect for conferring on trustees for the benefit of the Hospital for Sick Children, Great Ormond Street, London, a right to a royalty in respect of the public performance, commercial publication [F619or communication to the public] of the play “Peter Pan” by Sir James Matthew Barrie, or of any adaptation of that work, notwithstanding that copyright in the work expired on 31st December 1987.

Annotations:

Amendments (Textual) F619 Words in s. 301 substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 6(2)(d) (with regs. 31-40)

Financial assistance for certain international bodies

302 Financial assistance for certain international bodies.

(1) The Secretary of State may give financial assistance, in the form of grants, loans or guarantees to—

(a) any international organisation having functions relating to trade marks or other intellectual property, or

(b) any [F620EU] institution or other body established under any of the [F620EU] Treaties having any such functions,

with a view to the establishment or maintenance by that organisation, institution or body of premises in the United Kingdom.

(2) Any expenditure of the Secretary of State under this section shall be defrayed out of money provided by Parliament; and any sums received by the Secretary of State in consequence of this section shall be paid into the Consolidated Fund.

Annotations:

Amendments (Textual) F620 Words substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 6

General

303 Consequential amendments and repeals.

(1) The enactments specified in Schedule 7 are amended in accordance with that Schedule, the amendments being consequential on the provisions of this Act.

(2) The enactments specified in Schedule 8 are repealed to the extent specified.

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304 Extent.

(1) Provision as to the extent of Part I (copyright), Part II (rights in performances) and Part III (design right) is to be found in sections 157, 207 and 255 respectively; the extent of the other provisions of this Act is as follows.

(2) Parts IV to VII extend to England and Wales, Scotland and Northern Ireland, except that—

(a) sections 287 to 292 (patents county courts) extend to England and Wales only, (b) the proper law of the trust created by Schedule 6 (provisions for the benefit

of the Hospital for Sick Children) is the law of England and Wales, and (c) the amendments and repeals in Schedules 7 and 8 have the same extent as the

enactments amended or repealed.

(3) The following provisions extend to the Isle of Man subject to any modifications contained in an Order made by Her Majesty in Council—

(a) sections 293 and 294 (patents: licences of right), and (b) paragraphs 24 and 29 of Schedule 5 (patents: effect of filing international

application for patent and power to extend time limits).

(4) Her Majesty may by Order in Council direct that the following provisions extend to the Isle of Man, with such exceptions and modifications as may be specified in the Order—

(a) Part IV (registered designs), (b) Part V (patent agents), (c) the provisions of Schedule 5 (patents: miscellaneous amendments) not

mentioned in subsection (3) above, (d) sections 297 to 299 (fraudulent reception of transmissions), and (e) section 300 (fraudulent application or use of trade mark).

(5) Her Majesty may by Order in Council direct that sections 297 to 299 (fraudulent reception of transmissions) extend to any of the Channel Islands, with such exceptions and modifications as may be specified in the Order.

(6) Any power conferred by this Act to make provision by Order in Council for or in connection with the extent of provisions of this Act to a country outside the United Kingdom includes power to extend to that country, subject to any modifications specified in the Order, any provision of this Act which amends or repeals an enactment extending to that country.

305 Commencement.

(1) The following provisions of this Act come into force on Royal Assent— paragraphs 24 and 29 of Schedule 5 (patents: effect of filing international application for patent and power to extend time limits); section 301 and Schedule 6 (provisions for the benefit of the Hospital for Sick Children).

(2) Sections 293 and 294 (licences of right) come into force at the end of the period of two months beginning with the passing of this Act.

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(3) The other provisions of this Act come into force on such day as the Secretary of State may appoint by order made by statutory instrument, and different days may be appointed for different provisions and different purposes.

Annotations:

Modifications etc. (not altering text) C114 Power of appointment conferred by s. 305(3) partly exercised: S.I. 1989/816, 955, 1032, 1303,

1990/1400, 2168

306 Short title.

This Act may be cited as the Copyright, Designs and Patents Act 1988.

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S C H E D U L E S

SCHEDULE 1 Section 170.

Annotations:

Modifications etc. (not altering text) C115 Sch. 1 applied (with modifications) by S.I. 1989/1293, art. 4(4)(5)(6) C116 Sch. 1 applied (with modifications)(4.5.1993) by S.I. 1993/942, arts. 2(3), 5, Sch. 4 (with art. 6) C117 Sch. 1 applied (4.5.1993) by S.I. 1993/942, arts.4, 5, Sch. 4 (with art. 6) C118 Sch. 1 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(3), 3, 4(3)-(5), 6, Sch. 5

(subject to arts. 5, 7) (as amended (22.4.2003) by S.I. 2003/774, arts. 2-5) C119 Sch. 1 extended in part (with modifications) by The Copyright (Bermuda) Order 2003 (S.I. 2003/1517),

art. 2, Sch. (the amendment coming into force in accordance with art. 1 of the amending S.I.) C120 Sch. 1 extended in part (with modifications) by The Copyright (Gibraltar) Order 2005 (S.I. 2005/853),

art. 2, Sch. (the amendment coming into force in accordance with art. 1 of the amending S.I.)

Introductory 1 (1) In this Schedule—

“the 1911 Act” means the M56Copyright Act 1911, “the 1956 Act” means the M57Copyright Act 1956, and “the new copyright provisions” means the provisions of this Act relating

to copyright, that is, Part I (including this Schedule) and Schedules 3, 7 and 8 so far as they make amendments or repeals consequential on the provisions of Part I.

(2) References in this Schedule to “commencement”, without more, are to the date on which the new copyright provisions come into force.

(3) References in this Schedule to “existing works” are to works made before commencement; and for this purpose a work of which the making extended over a period shall be taken to have been made when its making was completed.

Annotations:

Marginal Citations M56 1911 c. 46. M57 1956 c. 74.

2 (1) In relation to the 1956 Act, references in this Schedule to a work include any work or other subject-matter within the meaning of that Act.

(2) In relation to the 1911 Act—

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(a) references in this Schedule to copyright include the right conferred by section 24 of that Act in substitution for a right subsisting immediately before the commencement of that Act;

(b) references in this Schedule to copyright in a sound recording are to the copyright under that Act in records embodying the recording; and

(c) references in this Schedule to copyright in a film are to any copyright under that Act in the film (so far as it constituted a dramatic work for the purposes of that Act) or in photographs forming part of the film.

General principles: continuity of the law 3 The new copyright provisions apply in relation to things existing at commencement

as they apply in relation to things coming into existence after commencement, subject to any express provision to the contrary.

4 (1) The provisions of this paragraph have effect for securing the continuity of the law so far as the new copyright provisions re-enact (with or without modification) earlier provisions.

(2) A reference in an enactment, instrument or other document to copyright, or to a work or other subject-matter in which copyright subsists, which apart from this Act would be construed as referring to copyright under the 1956 Act shall be construed, so far as may be required for continuing its effect, as being, or as the case may require, including, a reference to copyright under this Act or to works in which copyright subsists under this Act.

(3) Anything done (including subordinate legislation made), or having effect as done, under or for the purposes of a provision repealed by this Act has effect as if done under or for the purposes of the corresponding provision of the new copyright provisions.

(4) References (expressed or implied) in this Act or any other enactment, instrument or document to any of the new copyright provisions shall, so far as the context permits, be construed as including, in relation to times, circumstances and purposes before commencement, a reference to corresponding earlier provisions.

(5) A reference (express or implied) in an enactment, instrument or other document to a provision repealed by this Act shall be construed, so far as may be required for continuing its effect, as a reference to the corresponding provision of this Act.

(6) The provisions of this paragraph have effect subject to any specific transitional provision or saving and to any express amendment made by this Act.

Subsistence of copyright 5 (1) Copyright subsists in an existing work after commencement only if copyright

subsisted in it immediately before commencement.

(2) Sub-paragraph (1) does not prevent an existing work qualifying for copyright protection after commencement—

(a) under section 155 (qualification by virtue of first publication), or (b) by virtue of an Order under section 159 (application of Part I to countries

to which it does not extend).

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6 (1) Copyright shall not subsist by virtue of this Act in an artistic work made before 1st June 1957 which at the time when the work was made constituted a design capable of registration under the M58Registered Designs Act 1949 or under the enactments repealed by that Act, and was used, or intended to be used, as a model or pattern to be multiplied by an industrial process.

(2) For this purpose a design shall be deemed to be used as a model or pattern to be multiplied by any industrial process—

(a) when the design is reproduced or is intended to be reproduced on more than 50 single articles, unless all the articles in which the design is reproduced or is intended to be reproduced together form only a single set of articles as defined in section 44(1) of the Registered Designs Act 1949, or

(b) when the design is to be applied to— (i) printed paper hangings,

(ii) carpets, floor cloths or oil cloths, manufactured or sold in lengths or pieces,

(iii) textile piece goods, or textile goods manufactured or sold in lengths or pieces, or

(iv) lace, not made by hand.

Annotations:

Marginal Citations M58 1949 c. 88.

7 (1) No copyright subsists in a film, as such, made before 1st June 1957.

(2) Where a film made before that date was an original dramatic work within the meaning of the 1911 Act, the new copyright provisions have effect in relation to the film as if it was an original dramatic work within the meaning of Part I.

(3) The new copyright provisions have effect in relation to photographs forming part of a film made before 1st June 1957 as they have effect in relation to photographs not forming part of a film.

8 (1) A film sound-track to which section 13(9) of the 1956 Act applied before commencement (film to be taken to include sounds in associated sound-track) shall be treated for the purposes of the new copyright provisions not as part of the film, but as a sound recording.

(2) However— (a) copyright subsists in the sound recording only if copyright subsisted in the

film immediately before commencement, and it continues to subsist until copyright in the film expires;

(b) the author and first owner of copyright in the film shall be treated as having been author and first owner of the copyright in the sound recording; and

(c) anything done before commencement under or in relation to the copyright in the film continues to have effect in relation to the sound recording as in relation to the film.

[F6219 No copyright subsists in— (a) a wireless broadcast made before 1st June 1957, or (b) a broadcast by cable made before 1st January 1985;

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and any such broadcast shall be disregarded for the purposes of section 14(5) (duration of copyright in repeats).]

Annotations:

Amendments (Textual) F621 Sch. 1 para. 9 substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg, 2(1), {Sch. 1 para. 16(a)} (with regs. 31-40)

Authorship of work 10 The question who was the author of an existing work shall be determined in

accordance with the new copyright provisions for the purposes of the rights conferred by Chapter IV of Part I (moral rights), and for all other purposes shall be determined in accordance with the law in force at the time the work was made.

First ownership of copyright 11 (1) The question who was first owner of copyright in an existing work shall be

determined in accordance with the law in force at the time the work was made.

(2) Where before commencement a person commissioned the making of a work in circumstances falling within—

(a) section 4(3) of the 1956 Act or paragraph (a) of the proviso to section 5(1) of the 1911 Act (photographs, portraits and engravings), or

(b) the proviso to section 12(4) of the 1956 Act (sound recordings), those provisions apply to determine first ownership of copyright in any work made in pursuance of the commission after commencement.

Duration of copyright in existing works 12 (1) The following provisions have effect with respect to the duration of copyright in

existing works.

The question which provision applies to a work shall be determined by reference to the facts immediately before commencement; and expressions used in this paragraph which were defined for the purposes of the 1956 Act have the same meaning as in that Act.

(2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired under the 1956 Act—

(a) literary, dramatic or musical works in relation to which the period of 50 years mentioned in the proviso to section 2(3) of the 1956 Act (duration of copyright in works made available to the public after the death of the author) has begun to run;

(b) engravings in relation to which the period of 50 years mentioned in the proviso to section 3(4) of the 1956 Act (duration of copyright in works published after the death of the author) has begun to run;

(c) published photographs and photographs taken before 1st June 1957; (d) published sound recordings and sound recordings made before 1st June

1957;

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(e) published films and films falling within section 13(3)(a) of the 1956 Act (films registered under former enactments relating to registration of films).

(3) Copyright in anonymous or pseudonymous literary, dramatic, musical or artistic works (other than photographs) continues to subsist—

(a) if the work is published, until the date on which it would have expired in accordance with the 1956 Act, and

(b) if the work is unpublished, until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force or, if during that period the work is first made available to the public within the meaning of [F622section 12(3)] (duration of copyright in works of unknown authorship), the date on which copyright expires in accordance with that provision;

unless, in any case, the identity of the author becomes known before that date, in which case [F623section 12(2)] applies (general rule: life of the author [F624plus 70]).

(4) Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) literary, dramatic and musical works of which the author has died and in relation to which none of the acts mentioned in paragraphs (a) to (e) of the proviso to section 2(3) of the 1956 Act has been done;

(b) unpublished engravings of which the author has died; (c) unpublished photographs taken on or after 1st June 1957.

(5) Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) unpublished sound recordings made on or after 1st June 1957; (b) films not falling within sub-paragraph (2)(e) above,

unless the recording or film is published before the end of that period in which case copyright in it shall continue until the end of the period of 50 years from the end of the calendar year in which the recording or film is published.

(6) Copyright in any other description of existing work continues to subsist until the date on which copyright in that description of work expires in accordance with sections 12 to 15 of this Act.

(7) The above provisions do not apply to works subject to Crown or Parliamentary copyright (see paragraphs 41 to 43 below).

Annotations:

Amendments (Textual) F622 Words in Sch. 1 para. 12(3)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 18(3)(a) (with regs. 31-40) F623 Words in Sch. 1para. 12(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I.2003/2498), reg. 2(1), Sch. 1 para. 18(3)(b) (with regs. 31-40) F624 Words in Sch. 1 para. 12(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 18(3)(c) (with regs. 31-40)

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Perpetual copyright under the Copyright Act 1775 13 (1) The rights conferred on universities and colleges by the M59Copyright Act 1775 shall

continue to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force and shall then expire.

(2) The provisions of the following Chapters of Part I— Chapter III (acts permitted in relation to copyright works), Chapter VI (remedies for infringement), Chapter VII (provisions with respect to copyright licensing), and Chapter VIII (the Copyright Tribunal),

apply in relation to those rights as they apply in relation to copyright under this Act.

Annotations:

Marginal Citations M59 1775 c. 53.

Acts infringing copyright 14 (1) The provisions of Chapters II and III of Part I as to the acts constituting an

infringement of copyright apply only in relation to acts done after commencement; the provisions of the 1956 Act continue to apply in relation to acts done before commencement.

(2) So much of section 18(2) as extends the restricted act of issuing copies to the public to include the rental to the public of copies of sound recordings, films or computer programs does not apply in relation to a copy of a sound recording, film or computer program acquired by any person before commencement for the purpose of renting it to the public.

(3) For the purposes of section 27 (meaning of “infringing copy”) the question whether the making of an article constituted an infringement of copyright, or would have done if the article had been made in the United Kingdom, shall be determined—

(a) in relation to an article made on or after 1st June 1957 and before commencement, by reference to the 1956 Act, and

(b) in relation to an article made before 1st June 1957, by reference to the 1911 Act.

(4) For the purposes of the application of sections 31(2), 51(2) and 62(3) (subsequent exploitation of things whose making was, by virtue of an earlier provision of the section, not an infringement of copyright) to things made before commencement, it shall be assumed that the new copyright provisions were in force at all material times.

(5) Section 55 (articles for producing material in a particular typeface) applies where articles have been marketed as mentioned in subsection (1) before commencement with the substitution for the period mentioned in subsection (3) of the period of 25 years from the end of the calendar year in which the new copyright provisions come into force.

(6) Section 56 (transfer of copies, adaptations, &c. of work in electronic form) does not apply in relation to a copy purchased before commencement.

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(7) In section 65 (reconstruction of buildings) the reference to the owner of the copyright in the drawings or plans is, in relation to buildings constructed before commencement, to the person who at the time of the construction was the owner of the copyright in the drawings or plans under the 1956 Act, the 1911 Act or any enactment repealed by the 1911 Act.

15 (1) Section 57 (anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author) has effect in relation to existing works subject to the following provisions.

(2) Subsection (1)(b)(i) (assumption as to expiry of copyright) does not apply in relation to—

(a) photographs, or (b) the rights mentioned in paragraph 13 above (rights conferred by the

M60Copyright Act 1775).

(3) F625. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F625 Sch. 1 para. 15(3) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2, Sch. 1 para. 16(b), Sch. 2 (with regs. 31-40)

Marginal Citations M60 1775 c. 53.

16 The following provisions of section 7 of the 1956 Act continue to apply in relation to existing works—

(a) subsection (6) (copying of unpublished works from manuscript or copy in library, museum or other institution);

(b) subsection (7) (publication of work containing material to which subsection (6) applies), except paragraph (a) (duty to give notice of intended publication);

and subsection (9)(d) (illustrations) continues to apply for the purposes of those provisions.

17 Where in the case of a dramatic or musical work made before 1st July 1912, the right conferred by the 1911 Act did not include the sole right to perform the work in public, the acts restricted by the copyright shall be treated as not including—

(a) performing the work in public, [F626(b) communicating the work to the public, or]

(c) doing any of the above in relation to an adaptation of the work; and where the right conferred by the 1911 Act consisted only of the sole right to perform the work in public, the acts restricted by the copyright shall be treated as consisting only of those acts.

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Annotations:

Amendments (Textual) F626 Sch. 1 para. 17(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 4(6) (with regs. 31-40)

18 Where a work made before 1st July 1912 consists of an essay, article or portion forming part of and first published in a review, magazine or other periodical or work of a like nature, the copyright is subject to any right of publishing the essay, article, or portion in a separate form to which the author was entitled at the commencement of the 1911 Act, or would if that Act had not been passed, have become entitled under section 18 of the M61Copyright Act 1842.

Annotations:

Marginal Citations M61 1842 c. 45.

Designs 19 (1) Section 51 (exclusion of copyright protection in relation to works recorded or

embodied in design document or models) does not apply for ten years after commencement in relation to a design recorded or embodied in a design document or model before commencement.

(2) During those ten years the following provisions of Part III (design right) apply to any relevant copyright as in relation to design right—

(a) sections 237 to 239 (availability of licences of right), and (b) sections 247 and 248 (application to comptroller to settle terms of licence

of right).

(3) In section 237 as it applies by virtue of this paragraph, for the reference in subsection (1) to the last five years of the design right term there shall be substituted a reference to the last five years of the period of ten years referred to in sub- paragraph (1) above, or to so much of those last five years during which copyright subsists.

(4) In section 239 as it applies by virtue of this paragraph, for the reference in subsection (1)(b) to section 230 there shall be substituted a reference to section 99.

(5) Where a licence of right is available by virtue of this paragraph, a person to whom a licence was granted before commencement may apply to the comptroller for an order adjusting the terms of that licence.

(6) The provisions of sections 249 and 250 (appeals and rules) apply in relation to proceedings brought under or by virtue of this paragraph as to proceedings under Part III.

(7) A licence granted by virtue of this paragraph shall relate only to acts which would be permitted by section 51 if the design document or model had been made after commencement.

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(8) Section 100 (right to seize infringing copies, &c.) does not apply during the period of ten years referred to in sub-paragraph (1) in relation to anything to which it would not apply if the design in question had been first recorded or embodied in a design document or model after commencement.

(9) Nothing in this paragraph affects the operation of any rule of law preventing or restricting the enforcement of copyright in relation to a design.

Annotations:

Modifications etc. (not altering text) C121 Sch. 1 para. 19(1) excluded by S.I. 1989/1100, art. 10(2) C122 Sch. 1 para. 19(2) modified by S.I. 1989/1100, art. 10(3) C123 Sch. 1 para. 19(3) excluded by S.I. 1989/1100, art. 10(3)

20 (1) Where section 10 of the 1956 Act (effect of industrial application of design corresponding to artistic work) applied in relation to an artistic work at any time before commencement, section 52(2) of this Act applies with the substitution for the period of 25 years mentioned there of the relevant period of 15 years as defined in section 10(3) of the 1956 Act.

(2) Except as provided in sub-paragraph (1), section 52 applies only where articles are marketed as mentioned in subsection (1)(b) after commencement.

Abolition of statutory recording licence 21 Section 8 of the 1956 Act (statutory licence to copy records sold by retail) continues

to apply where notice under subsection (1)(b) of that section was given before the repeal of that section by this Act, but only in respect of the making of records—

(a) within one year of the repeal coming into force, and (b) up to the number stated in the notice as intended to be sold.

Moral rights 22 (1) No act done before commencement is actionable by virtue of any provision of

Chapter IV of Part I (moral rights).

(2) Section 43 of the 1956 Act (false attribution of authorship) continues to apply in relation to acts done before commencement.

23 (1) The following provisions have effect with respect to the rights conferred by— (a) section 77 (right to be identified as author or director), and (b) section 80 (right to object to derogatory treatment of work).

(2) The rights do not apply— (a) in relation to a literary, dramatic, musical and artistic work of which the

author died before commencement; or (b) in relation to a film made before commencement.

(3) The rights in relation to an existing literary, dramatic, musical or artistic work do not apply—

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(a) where copyright first vested in the author, to anything which by virtue of an assignment of copyright made or licence granted before commencement may be done without infringing copyright;

(b) where copyright first vested in a person other than the author, to anything done by or with the licence of the copyright owner.

(4) The rights do not apply to anything done in relation to a record made in pursuance of section 8 of the 1956 Act (statutory recording licence).

24 The right conferred by section 85 (right to privacy of certain photographs and films) does not apply to photographs taken or films made before commencement.

Assignments and licences 25 (1) Any document made or event occurring before commencement which had any

operation— (a) affecting the ownership of the copyright in an existing work, or (b) creating, transferring or terminating an interest, right or licence in respect of

the copyright in an existing work, has the corresponding operation in relation to copyright in the work under this Act.

(2) Expressions used in such a document shall be construed in accordance with their effect immediately before commencement.

26 (1) Section 91(1) of this Act (assignment of future copyright: statutory vesting of legal interest on copyright coming into existence) does not apply in relation to an agreement made before 1st June 1957.

(2) The repeal by this Act of section 37(2) of the 1956 Act (assignment of future copyright: devolution of right where assignee dies before copyright comes into existence) does not affect the operation of that provision in relation to an agreement made before commencement.

27 (1) Where the author of a literary, dramatic, musical or artistic work was the first owner of the copyright in it, no assignment of the copyright and no grant of any interest in it, made by him (otherwise than by will) after the passing of the 1911 Act and before 1st June 1957, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of 25 years from the death of the author.

(2) The reversionary interest in the copyright expectant on the termination of that period may after commencement be assigned by the author during his life but in the absence of any assignment shall, on his death, devolve on his legal personal representatives as part of his estate.

(3) Nothing in this paragraph affects— (a) an assignment of the reversionary interest by a person to whom it has been

assigned, (b) an assignment of the reversionary interest after the death of the author by his

personal representatives or any person becoming entitled to it, or (c) any assignment of the copyright after the reversionary interest has fallen in.

(4) Nothing in this paragraph applies to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work.

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(5) In sub-paragraph (4) “collective work” means— (a) any encyclopaedia, dictionary, yearbook, or similar work; (b) a newspaper, review, magazine, or similar periodical; and (c) any work written in distinct parts by different authors, or in which works or

parts of works of different authors are incorporated. 28 (1) This paragraph applies where copyright subsists in a literary, dramatic, musical or

artistic work made before 1st July 1912 in relation to which the author, before the commencement of the 1911 Act, made such an assignment or grant as was mentioned in paragraph (a) of the proviso to section 24(1) of that Act (assignment or grant of copyright or performing right for full term of the right under the previous law).

(2) If before commencement any event has occurred or notice has been given which by virtue of paragraph 38 of Schedule 7 to the 1956 Act had any operation in relation to copyright in the work under that Act, the event or notice has the corresponding operation in relation to copyright under this Act.

(3) Any right which immediately before commencement would by virtue of paragraph 38(3) of that Schedule have been exercisable in relation to the work, or copyright in it, is exercisable in relation to the work or copyright in it under this Act.

(4) If in accordance with paragraph 38(4) of that Schedule copyright would, on a date after the commencement of the 1956 Act, have reverted to the author or his personal representatives and that date falls after the commencement of the new copyright provisions—

(a) the copyright in the work shall revert to the author or his personal representatives, as the case may be, and

(b) any interest of any other person in the copyright which subsists on that date by virtue of any document made before the commencement of the 1911 Act shall thereupon determine.

29 Section 92(2) of this Act (rights of exclusive licensee against successors in title of person granting licence) does not apply in relation to an exclusive licence granted before commencement.

Bequests 30 (1) Section 93 of this Act (copyright to pass under will with original document or other

material thing embodying unpublished work)— (a) does not apply where the testator died before 1st June 1957, and (b) where the testator died on or after that date and before commencement,

applies only in relation to an original document embodying a work.

(2) In the case of an author who died before 1st June 1957, the ownership after his death of a manuscript of his, where such ownership has been acquired under a testamentary disposition made by him and the manuscript is of a work which has not been published or performed in public, is prima facie proof of the copyright being with the owner of the manuscript.

Remedies for infringement 31 (1) Sections 96 and 97 of this Act (remedies for infringement) apply only in relation

to an infringement of copyright committed after commencement; section 17 of

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the 1956 Act continues to apply in relation to infringements committed before commencement.

(2) Sections 99 and 100 of this Act (delivery up or seizure of infringing copies, &c.) apply to infringing copies and other articles made before or after commencement; section 18 of the 1956 Act, and section 7 of the 1911 Act, (conversion damages, &c.), do not apply after commencement except for the purposes of proceedings begun before commencement.

(3) Sections 101 to 102 of this Act (rights and remedies of exclusive licensee) apply where sections 96 to 100 of this Act apply; section 19 of the 1956 Act continues to apply where section 17 or 18 of that Act applies.

(4) Sections 104 to 106 of this Act (presumptions) apply only in proceedings brought by virtue of this Act; section 20 of the 1956 Act continues to apply in proceedings brought by virtue of that Act.

32 Sections 101 and 102 of this Act (rights and remedies of exclusive licensee) do not apply to a licence granted before 1st June 1957.

33 (1) The provisions of section 107 of this Act (criminal liability for making or dealing with infringing articles, &c.) apply only in relation to acts done after commencement; section 21 of the 1956 Act (penalties and summary proceedings in respect of dealings which infringe copyright) continues to apply in relation to acts done before commencement.

(2) Section 109 of this Act (search warrants) applies in relation to offences committed before commencement in relation to which section 21A or 21B of the 1956 Act applied; sections 21A and 21B continue to apply in relation to warrants issued before commencement.

Copyright Tribunal: proceedings pending on commencement 34 (1) The Lord Chancellor may, after consultation with the Lord Advocate, by rules make

such provision as he considers necessary or expedient with respect to proceedings pending under Part IV of the 1956 Act immediately before commencement.

(2) Rules under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Qualification for copyright protection 35 Every work in which copyright subsisted under the 1956 Act immediately before

commencement shall be deemed to satisfy the requirements of Part I of this Act as to qualification for copyright protection.

Dependent territories 36 (1) The 1911 Act shall remain in force as part of the law of any dependent territory in

which it was in force immediately before commencement until— (a) the new copyright provisions come into force in that territory by virtue of

an Order under section 157 of this Act (power to extend new copyright provisions), or

(b) in the case of any of the Channel Islands, the Act is repealed by Order under sub-paragraph (3) below.

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(2) An Order in Council in force immediately before commencement which extends to any dependent territory any provisions of the 1956 Act shall remain in force as part of the law of that territory until—

(a) the new copyright provisions come into force in that territory by virtue of an Order under section 157 of this Act (power to extend new copyright provisions), or

(b) in the case of the Isle of Man, the Order is revoked by Order under sub- paragraph (3) below;

and while it remains in force such an Order may be varied under the provisions of the 1956 Act under which it was made.

(3) If it appears to Her Majesty that provision with respect to copyright has been made in the law of any of the Channel Islands or the Isle of Man otherwise than by extending the provisions of Part I of this Act, Her Majesty may by Order in Council repeal the 1911 Act as it has effect as part of the law of that territory or, as the case may be, revoke the Order extending the 1956 Act there.

(4) A dependent territory in which the 1911 or 1956 Act remains in force shall be treated, in the law of the countries to which Part I extends, as a country to which that Part extends; and those countries shall be treated in the law of such a territory as countries to which the 1911 Act or, as the case may be, the 1956 Act extends.

(5) If a country in which the 1911 or 1956 Act is in force ceases to be a colony of the United Kingdom, section 158 of this Act (consequences of country ceasing to be colony) applies with the substitution for the reference in subsection (3)(b) to the provisions of Part I of this Act of a reference to the provisions of the 1911 or 1956 Act, as the case may be.

(6) In this paragraph “dependent territory” means any of the Channel Islands, the Isle of Man or any colony.

37 (1) This paragraph applies to a country which immediately before commencement was not a dependent territory within the meaning of paragraph 36 above but—

(a) was a country to which the 1956 Act extended, or (b) was treated as such a country by virtue of paragraph 39(2) of Schedule 7

to that Act (countries to which the 1911 Act extended or was treated as extending);

and Her Majesty may by Order in Council conclusively declare for the purposes of this paragraph whether a country was such a country or was so treated.

(2) A country to which this paragraph applies shall be treated as a country to which Part I extends for the purposes of sections 154 to 156 (qualification for copyright protection) until—

(a) an Order in Council is made in respect of that country under section 159 (application of Part I to countries to which it does not extend), or

(b) an Order in Council is made declaring that it shall cease to be so treated by reason of the fact that the provisions of the 1956 Act or, as the case may be, the 1911 Act, which extended there as part of the law of that country have been repealed or amended.

(3) A statutory instrument containing an Order in Council under this paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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Territorial waters and the continental shelf 38 Section 161 of this Act (application of Part I to things done in territorial waters or

the United Kingdom sector of the continental shelf) does not apply in relation to anything done before commencement.

British ships, aircraft and hovercraft 39 Section 162 (British ships, aircraft and hovercraft) does not apply in relation to

anything done before commencement.

Crown copyright 40 (1) Section 163 of this Act (general provisions as to Crown copyright) applies to an

existing work if— (a) section 39 of the 1956 Act applied to the work immediately before

commencement, and (b) the work is not one to which section 164, 165 or 166 applies (copyright in

Acts, Measures and Bills and Parliamentary copyright: see paragraphs 42 and 43 below).

(2) Section 163 (1)(b) (first ownership of copyright) has effect subject to any agreement entered into before commencement under section 39(6) of the 1956 Act.

41 (1) The following provisions have effect with respect to the duration of copyright in existing works to which section 163 (Crown copyright) applies.

(2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired in accordance with the 1956 Act—

(a) published literary, dramatic or musical works; (b) artistic works other than engravings or photographs; (c) published engravings; (d) published photographs and photographs taken before 1st June 1957; (e) published sound recordings and sound recordings made before 1st June

1957; (f) published films and films falling within section 13(3)(a) of the 1956 Act

(films registered under former enactments relating to registration of films).

(3) Copyright in unpublished literary, dramatic or musical works continues to subsist until—

(a) the date on which copyright expires in accordance with section 163(3), or (b) the end of the period of 50 years from the end of the calendar year in which

the new copyright provisions come into force, whichever is the later.

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(a) unpublished engravings; (b) unpublished photographs taken on or after 1st June 1957.

(5) Copyright in a film or sound recording not falling within sub-paragraph (2) above continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force, unless the film or recording is published before the end of that period, in which case copyright expires 50 years from the end of the calendar year in which it is published.

42 (1) Section 164 (copyright in Acts and Measures) applies to existing Acts of Parliament and Measures of the General Synod of the Church of England.

(2) References in that section to Measures of the General Synod of the Church of England include Church Assembly Measures.

Parliamentary copyright 43 (1) Section 165 of this Act (general provisions as to Parliamentary copyright) applies

to existing unpublished literary, dramatic, musical or artistic works, but does not otherwise apply to existing works.

(2) Section 166 (copyright in Parliamentary Bills) does not apply— (a) to a public Bill which was introduced into Parliament and published before

commencement, (b) to a private Bill of which a copy was deposited in either House before

commencement, or (c) to a personal Bill which was given a First Reading in the House of Lords

before commencement.

Copyright vesting in certain international organisations 44 (1) Any work in which immediately before commencement copyright subsisted by

virtue of section 33 of the 1956 Act shall be deemed to satisfy the requirements of section 168(1); but otherwise section 168 does not apply to works made or, as the case may be, published before commencement.

(2) Copyright in any such work which is unpublished continues to subsist until the date on which it would have expired in accordance with the 1956 Act, or the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force, whichever is the earlier.

Meaning of “publication” 45 Section 175(3) (construction of building treated as equivalent to publication)

applies only where the construction of the building began after commencement.

Meaning of “unauthorised” 46 For the purposes of the application of the definition in section 178 (minor

definitions) of the expression “unauthorised” in relation to things done before commencement—

(a) paragraph (a) applies in relation to things done before 1st June 1957 as if the reference to the licence of the copyright owner were a reference to his consent or acquiescence;

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(b) paragraph (b) applies with the substitution for the words from “or, in a case” to the end of the words “or any person lawfully claiming under him”; and

SCHEDULE 2 Section 189.

RIGHTS IN PERFORMANCES: PERMITTED ACTS

Annotations:

Modifications etc. (not altering text) C124 Sch. 2 continued (31.10.2003) by virtue of The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 33 (with regs. 31-40)

Introductory 1 (1) The provisions of this Schedule specify acts which may be done in relation to a

performance or recording notwithstanding the rights conferred by [F627this Chapter]; they relate only to the question of infringement of those rights and do not affect any other right or obligation restricting the doing of any of the specified acts.

(2) No inference shall be drawn from the description of any act which may by virtue of this Schedule be done without infringing the rights conferred by [F627this Chapter] as to the scope of those rights.

(3) The provisions of this Schedule are to be construed independently of each other, so that the fact that an act does not fall within one provision does not mean that it is not covered by another provision.

Annotations:

Amendments (Textual) F627 Words in Sch. 2 para. 1(1)(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

[F628Making of temporary copies

Annotations:

Amendments (Textual) F628 Sch. 2 para. 1A and cross-heading inserted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 8(2) (with regs. 31-40)

1A The rights conferred by [F629this Chapter] are not infringed by the making of a temporary copy of a recording of a performance which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable—

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(a) a transmission of the recording in a network between third parties by an intermediary; or

(b) a lawful use of the recording; and which has no independent economic significance.]

Annotations:

Amendments (Textual) F629 Words in Sch. 2 para. 1A substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

Criticism, reviews and news reporting 2 [F630(1) Fair dealing with a performance or recording for the purpose of criticism or review,

of that or another performance or recording, or of a work, does not infringe any of the rights conferred by [F631this Chapter] provided that the performance or recording has been made available to the public.

(1A) Fair dealing with a performance or recording for the purpose of reporting current events does not infringe any of the rights conferred by [F631this Chapter].]

(2) Expressions used in this paragraph have the same meaning as in section 30.

Annotations:

Amendments (Textual) F630 Sch. 2 para. 2(1)(1A) substituted (31.10.2003) for Sch. 2 para. 2(1) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 10(2) (with regs. 31-40) F631 Words in Sch. 2 para. 2(1)(1A) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

Incidental inclusion of performance or recording 3 (1) The rights conferred by [F632this Chapter] are not infringed by the incidental inclusion

of a performance or recording in a sound recording, film [F633or broadcast].

(2) Nor are those rights infringed by anything done in relation to copies of, or the playing, showing [F634or communication to the public] of, anything whose making was, by virtue of sub-paragraph (1), not an infringement of those rights.

(3) A performance or recording so far as it consists of music, or words spoken or sung with music, shall not be regarded as incidentally included in a sound recording [F633or broadcast] if it is deliberately included.

(4) Expressions used in this paragraph have the same meaning as in section 31.

Annotations:

Amendments (Textual) F632 Words in Sch. 2 para. 3(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

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F633 Words in Sch. 2 para. 3(1)(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(l)(m) (with regs. 31-40)

F634 Words in Sch. 2 para. 3(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 6(2)(e) (with regs. 31-40)

Things done for purposes of instruction or examination 4 (1) The rights conferred by [F635this Chapter] are not infringed by the copying of

a recording of a performance in the course of instruction, or of preparation for instruction, in the making of films or film sound-tracks, provided the copying is done by a person giving or receiving instruction [F636and the instruction is for a non- commercial purpose].

(2) The rights conferred by [F635this Chapter] are not infringed— (a) by the copying of a recording of a performance for the purposes of setting

or answering the questions in an examination, or (b) by anything done for the purposes of an examination by way of

communicating the questions to the candidates.

(3) Where a recording which would otherwise be an illicit recording is made in accordance with this paragraph but is subsequently dealt with, it shall be treated as an illicit recording for the purposes of that dealing, and if that dealing infringes any right conferred by [F635this Chapter] for all subsequent purposes.

[F637For this purpose “dealt with” means— (a) sold or let for hire, offered or exposed for sale or hire; or (b) communicated to the public, unless that communication, by virtue of sub-

paragraph (2)(b), is not an infringement of the rights conferred by [F635this Chapter].]

(4) Expressions used in this paragraph have the same meaning as in section 32.

Annotations:

Amendments (Textual) F635 Words in Sch. 2 para. 4(1)(2)(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8) F636 Words in Sch. 2 para. 4(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 11(2)(a) (with regs. 31-40) F637 Words in Sch. 2 para. 4(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/24980, reg. 11(2)(b) (with regs. 31-40)

Playing or showing sound recording, film, [F638or broadcast]at educational establishment

Annotations:

Amendments (Textual) F638 Words in heading preceding Sch. 2 para. 5 substituted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 2(2) (with regs. 31-40)

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5 (1) The playing or showing of a sound recording, film [F639or broadcast] at an educational establishment for the purposes of instruction before an audience consisting of teachers and pupils at the establishment and other persons directly connected with the activities of the establishment is not a playing or showing of a performance in public for the purposes of infringement of the rights conferred by [F640this Chapter] .

(2) A person is not for this purpose directly connected with the activities of the educational establishment simply because he is the parent of a pupil at the establishment.

(3) Expressions used in this paragraph have the same meaning as in section 34 and any provision made under section 174(2) with respect to the application of that section also applies for the purposes of this paragraph.

Annotations:

Amendments (Textual) F639 Words in Sch. 2 para. 5(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(n) (with regs. 31-40) F640 Words in Sch. 2 para. 5(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

Recording of broadcasts F641. . . by educational establishments

Annotations:

Amendments (Textual) F641 Words in heading preceding Sch. 2 para. 6 repealed (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

6 (1) A recording of a broadcast F642. . . , or a copy of such a recording, may be made by or on behalf of an educational establishment for the educational purposes of that establishment without thereby infringing any of the rights conferred by [F643this Chapter] in relation to any performance or recording included in it [F644, provided that the educational purposes are non-commercial].

[F645(1A) The rights conferred by [F643this Chapter] are not infringed where a recording of a broadcast or a copy of such a recording, whose making was by virtue of sub- paragraph (1) not an infringement of such rights, is communicated to the public by a person situated within the premises of an educational establishment provided that the communication cannot be received by any person situated outside the premises of that establishment.

(1B) This paragraph does not apply if or to the extent that there is a licensing scheme certified for the purposes of this paragraph under paragraph 16 of Schedule 2A providing for the grant of licences.]

(2) Where a recording which would otherwise be an illicit recording is made in accordance with this paragraph but is subsequently dealt with, it shall be treated as an illicit recording for the purposes of that dealing, and if that dealing infringes any right conferred by [F643this Chapter] for all subsequent purposes.

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For this purpose “dealt with” means sold or let for hire, [F646, offered or exposed for sale or hire, or communicated from within the premises of an educational establishment to any person situated outside those premises.]

(3) Expressions used in this paragraph have the same meaning as in section 35 and any provision made under section 174(2) with respect to the application of that section also applies for the purposes of this paragraph.

Annotations:

Amendments (Textual) F642 Words in Sch. 2 para. 6(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F643 Words in Sch. 2 para. 6(1)(1A)(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8) F644 Words in Sch. 2 para. 6(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 12(2)(a) (with regs. 31-40) F645 Sch. 2 para. 6(1A)(1B) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 12(2)(b) (with regs. 31-40) F646 Words in Sch. 2 para. 6(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 9s.i. 2003/2498), {reg. 12(2)(c)} (with regs. 31-40)

[F647Lending of copies by educational establishments]

Annotations:

Amendments (Textual) F647 Sch. 2 para. 6A and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III)

[F6486A(1) The rights conferred by [F649this Chapter] are not infringed by the lending of copies of a recording of a performance by an educational establishment.

(2) Expressions used in this paragraph have the same meaning as in section 36A; and any provision with respect to the application of that section made under section 174(2) (instruction given elsewhere than an educational establishment) applies also for the purposes of this paragraph.]

Annotations:

Amendments (Textual) F648 Sch. 2 para. 6A inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III) F649 Words in Sch. 2 para. 6A(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

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[F650Lending of copies by libraries or archives]

Annotations:

Amendments (Textual) F650 Sch. 2 para. 6B and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III)

[F6516B(1) The rights conferred by [F652this Chapter] are not infringed by the lending of copies of a recording of a performance by a prescribed library or archive (other than a public library) which is not conducted for profit.

(2) Expressions used in this paragraph have the same meaning as in section 40A(2); and any provision under section 37 prescribing libraries or archives for the purposes of that section applies also for the purposes of this paragraph.]

Annotations:

Amendments (Textual) F651 Sch. 2 para. 6B inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III) F652 Words in Sch. 2 para. 6B(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

Modifications etc. (not altering text) C125 Sch. 2 para. 6B modified (1.12.1996) by S.I. 1996/2967, reg. 35 (with Pt. III)

Copy of work required to be made as condition of export 7 (1) If an article of cultural or historical importance or interest cannot lawfully be

exported from the United Kingdom unless a copy of it is made and deposited in an appropriate library or archive, it is not an infringement of any right conferred by [F653this Chapter] to make that copy.

(2) Expressions used in this paragraph have the same meaning as in section 44.

Annotations:

Amendments (Textual) F653 Words in Sch. 2 para. 7(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

Parliamentary and judicial proceedings 8 (1) The rights conferred by [F654this Chapter] are not infringed by anything done for the

purposes of parliamentary or judicial proceedings or for the purpose of reporting such proceedings.

(2) Expressions used in this paragraph have the same meaning as in section 45.

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Annotations:

Amendments (Textual) F654 Words in Sch. 2 para. 8(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

Royal Commissions and statutory inquiries 9 (1) The rights conferred by [F655this Chapter] are not infringed by anything done for the

purposes of the proceedings of a Royal Commission or statutory inquiry or for the purpose of reporting any such proceedings held in public.

(2) Expressions used in this paragraph have the same meaning as in section 46.

Annotations:

Amendments (Textual) F655 Words in Sch. 2 para. 9(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

Public records 10 (1) Material which is comprised in public records within the meaning of the M62Public

Records Act 1958, the M63Public Records (Scotland) Act 1937 or the M64Public Records Act (Northern Ireland) 1923 [F656, or in Welsh public records (as defined in [F657the Government of Wales Act 2006]), ] which are open to public inspection in pursuance of that Act, may be copied, and a copy may be supplied to any person, by or with the authority of any officer appointed under that Act, without infringing any right conferred by [F658this Chapter].

(2) Expressions used in this paragraph have the same meaning as in section 49.

Annotations:

Amendments (Textual) F656 Words in Sch. 2 para. 10(1) inserted (1.4.1999) by 1998 c. 38, s. 125, Sch. 12 para. 29 (with ss. 139(2),

143(2)); S.I. 1999/782, art. 2 F657 Words in Sch. 2 para. 10(1) substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10

para. 32 (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F658 Words in Sch. 2 para. 10(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

Marginal Citations M62 1958 c. 51. M63 1937 c. 43. M64 1923 c. 20 (N.I.).

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Acts done under statutory authority 11 (1) Where the doing of a particular act is specifically authorised by an Act of Parliament,

whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe the rights conferred by [F659this Chapter] .

(2) Sub-paragraph (1) applies in relation to an enactment contained in Northern Ireland legislation as it applies to an Act of Parliament.

(3) Nothing in this paragraph shall be construed as excluding any defence of statutory authority otherwise available under or by virtue of any enactment.

(4) Expressions used in this paragraph have the same meaning as in section 50.

Annotations:

Amendments (Textual) F659 Words in Sch. 2 para. 11(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

Transfer of copies of works in electronic form 12 (1) This paragraph applies where a recording of a performance in electronic form has

been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to make further recordings in connection with his use of the recording.

(2) If there are no express terms— (a) prohibiting the transfer of the recording by the purchaser, imposing

obligations which continue after a transfer, prohibiting the assignment of any consent or terminating any consent on a transfer, or

(b) providing for the terms on which a transferee may do the things which the purchaser was permitted to do,

anything which the purchaser was allowed to do may also be done by a transferee without infringement of the rights conferred by [F660this Chapter], but any recording made by the purchaser which is not also transferred shall be treated as an illicit recording for all purposes after the transfer.

(3) The same applies where the original purchased recording is no longer usable and what is transferred is a further copy used in its place.

(4) The above provisions also apply on a subsequent transfer, with the substitution for references in sub-paragraph (2) to the purchaser of references to the subsequent transferor.

(5) This paragraph does not apply in relation to a recording purchased before the commencement of [F661this Chapter].

(6) Expressions used in this paragraph have the same meaning as in section 56.

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Annotations:

Amendments (Textual) F660 Words in Sch. 2 para. 12(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F661 Words in Sch. 2 para. 12(5) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

Use of recordings of spoken works in certain cases 13 (1) Where a recording of the reading or recitation of a literary work is made for the

purpose— (a) of reporting current events, or (b) of [F662communicating to the public] the whole or part of the reading or

recitation, it is not an infringement of the rights conferred by [F663this Chapter] to use the recording (or to copy the recording and use the copy) for that purpose, provided the following conditions are met.

(2) The conditions are that— (a) the recording is a direct recording of the reading or recitation and is not taken

from a previous recording or from a broadcast F664. . . ; (b) the making of the recording was not prohibited by or on behalf of the person

giving the reading or recitation; (c) the use made of the recording is not of a kind prohibited by or on behalf of

that person before the recording was made; and (d) the use is by or with the authority of a person who is lawfully in possession

of the recording.

(3) Expressions used in this paragraph have the same meaning as in section 58.

Annotations:

Amendments (Textual) F662 Words in Sch. 2 para. 12 substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 12(b) (with regs. 31-40) F663 Words in Sch. 2 para. 13(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8) F664 Words in Sch. 2 para. 13(2)(a) repealed (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

Recordings of folksongs 14 (1) A recording of a performance of a song may be made for the purpose of including it

in an archive maintained by a designated body without infringing any of the rights conferred by [F665this Chapter] , provided the conditions in sub-paragraph (2) below are met.

(2) The conditions are that—

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(a) the words are unpublished and of unknown authorship at the time the recording is made,

(b) the making of the recording does not infringe any copyright, and (c) its making is not prohibited by any performer.

(3) Copies of a recording made in reliance on sub-paragraph (1) and included in an archive maintained by a designated body may, if the prescribed conditions are met, be made and supplied by the archivist without infringing any of the rights conferred by [F665this Chapter] .

(4) In this paragraph— “designated body” means a body designated for the purposes of

section 61, and “the prescribed conditions” means the conditions prescribed for the

purposes of subsection (3) of that section; and other expressions used in this paragraph have the same meaning as in that section.

Annotations:

Amendments (Textual) F665 Words in Sch. 2 para. 14(1)(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

[F666Lending of certain recordings]

Annotations:

Amendments (Textual) F666 Sch. 2 para. 14A and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III)

F66714A(1) The Secretary of State may by order provide that in such cases as may be specified in the order the lending to the public of copies of films or sound recordings shall be treated as licensed by the performer subject only to the payment of such reasonable royalty or other payment as may be agreed or determined in default of agreement by the Copyright Tribunal.

(2) No such order shall apply if, or to the extent that, there is a licensing scheme certified for the purposes of this paragraph under paragraph 16 of Schedule 2A providing for the grant of licences.

(3) An order may make different provision for different cases and may specify cases by reference to any factor relating to the work, the copies lent, the lender or the circumstances of the lending.

(4) An order shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

(5) Nothing in this section affects any liability under section 184(1)(b) (secondary infringement: possessing or dealing with illicit recording) in respect of the lending of illicit recordings.

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(6) Expressions used in this paragraph have the same meaning as in section 66.

Annotations:

Amendments (Textual) F667 Sch. 2 para. 14A inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III)

Playing of sound recordings for purposes of club, society, &c 15 F668. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F668 Sch. 2 para. 15 omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988

(Amendment) Regulations 2010 (S.I. 2010/2694), art. 3(2)

Incidental recording for purposes of broadcast F669. . .

Annotations:

Amendments (Textual) F669 Words in heading preceding Sch. 2 para. 16 repealed (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

16 (1) A person who proposes to broadcast a recording of a performance F670. . . in circumstances not infringing the rights conferred by [F671this Chapter] shall be treated as having consent for the purposes of [F672this Chapter] for the making of a further recording for the purposes of the broadcast . . . .

(2) That consent is subject to the condition that the further recording— (a) shall not be used for any other purpose, and (b) shall be destroyed within 28 days of being first used for broadcasting the

performance . . . .

(3) A recording made in accordance with this paragraph shall be treated as an illicit recording—

(a) for the purposes of any use in breach of the condition mentioned in sub- paragraph (2)(a), and

(b) for all purposes after that condition or the condition mentioned in sub- paragraph (2)(b) is broken.

(4) Expressions used in this paragraph have the same meaning as in section 68.

Annotations:

Amendments (Textual) F670 Words in Sch. 2 para. 16(1)(2)(b) repealed (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

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F671 Words in Sch. 2 para. 16(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

F672 Words in Sch. 2 para. 16(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 10 (with reg. 8)

Recordings for purposes of supervision and control of broadcasts and [F673other services]

Annotations:

Amendments (Textual) F673 Words in heading preceding Sch. 2 para. 17 substituted (31.10.2003) by The Copyright and Related

Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 2(1) (with regs. 31-40)

17 (1) The rights conferred by [F674this Chapter] are not infringed by the making or use by the British Broadcasting Corporation, for the purpose of maintaining supervision and control over programmes broadcast by them [F675or included in any on-demand programme service provided by them], of recordings of those programmes.

[F676(2) The rights conferred by [F674this Chapter] are not infringed by anything done in pursuance of—

[F677(a) section 167(1) of the Broadcasting Act 1990, section 115(4) or (6) or 117 of the Broadcasting Act 1996 or paragraph 20 of Schedule 12 to the Communications Act 2003;]

(b) a condition which, [F678by virtue of section 334(1) of the Communications Act 2003], is included in a licence granted under Part I or III of that Act or Part I or II of the Broadcasting Act 1996; F679. . .

(c) a direction given under section 109(2) of the Broadcasting Act 1990 (power of [F680OFCOM] to require production of recordings etc).

[F681(d) section 334(3) [F682, 368O(1) or (3)] of the Communications Act 2003.]

[F683(3) The rights conferred by [F674this Chapter] are not infringed by the use by OFCOM in connection with the performance of any of their functions under the Broadcasting Act 1990, the Broadcasting Act 1996 or the Communications Act 2003 of—

(a) any recording, script or transcript which is provided to them under or by virtue of any provision of those Acts; or

(b) any existing material which is transferred to them by a scheme made under section 30 of the Communications Act 2003.]]

(4) In subsection (3), “existing material” means— (a) any recording, script or transcript which was provided to the Independent

Television Commission or the Radio Authority under or by virtue of any provision of the Broadcasting Act 1990 or the Broadcasting Act 1996; and

(b) any recording or transcript which was provided to the Broadcasting Standards Commission under section 115(4) or (6) or 116(5) of the Broadcasting Act 1996.

[F684(5) Copyright is not infringed by the use by an appropriate regulatory authority designated under section 368B of the Communications Act 2003, in connection with the performance of any of their functions under that Act, of any recording, script or transcript which is provided to them under or by virtue of any provision of that Act.

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(6) In this section “on-demand programme service” has the same meaning as in the Communications Act 2003 (see section 368A of that Act).]

Annotations:

Amendments (Textual) F674 Words in Sch. 2 para. 17(1)(2)(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8) F675 Words in Sch. 2 para. 17(1) inserted (19.12.2009) by The Audiovisual Media Services Regulations 2009

(S.I. 2009/2979), reg. 12(3)(a) F676 Sch. 2 para. 17(2)(3) substituted (1.10.1996 for certain purposes and 1.4.1997 otherwise) by 1996 c. 55,

s. 148(1), Sch. 10 Pt. III para. 32 (with s. 43(6)); S.I. 1996/2120, art. 4(1), Sch. 1; S.I. 1997/1005, art. 4 F677 Sch. 2 para. 17(2)(a) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch.

17 para. 93(2)(a) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F678 Words in Sch. 2 para. 17(2)(b) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406,

411, Sch. 17 para. 93(2)(b) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F679 Word in Sch. 2 para. 17(2)(b) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411,

Sch. 19(1) (with Sch. 18, Sch. 19(1) Note 1); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F680 Word in Sch. 2 para. 17(2)(c) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406,

411, Sch. 17 para. 93(2)(c) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F681 Sch. 2 para. 17(2)(d) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch. 17

para. 93(2)(d) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F682 Words in Sch. 2 para. 17(2)(d) inserted (19.12.2009) by The Audiovisual Media Services Regulations

2009 (S.I. 2009/2979), reg. 12(3)(b) F683 Sch. 2 para. 17(3)(4) substituted (29.12.2003) for Sch. 2 para. 17(3) by Communications Act 2003 (c. 21),

ss. 406, 411, Sch. 17 para. 93(3) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F684 Sch. 2 para. 17(5)(6) inserted (19.12.2009) by The Audiovisual Media Services Regulations 2009 (S.I.

2009/2979), reg. 121(3)(c)

Modifications etc. (not altering text) C126 Sch. 2 para. 17 modified (20.7.2004) The Contracting Out (Functions relating to Broadcast Advertising)

and Specification of Relevant Functions Order 2004 (S.I. 2004/1975), art. 9(1)(3) (with reg. 5)

[F685Recording for the purposes of time-shifting

Annotations:

Amendments (Textual) F685 Sch. 2 para. 17A and preceding heading inserted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 19(3) (with regs. 31-40)

17A (1) The making in domestic premises for private and domestic use of a recording of a broadcast solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe any right conferred by [F686this Chapter] in relation to a performance or recording included in the broadcast.

(2) Where a recording which would otherwise be an illicit recording is made in accordance with this paragraph but is subsequently dealt with—

(a) it shall be treated as an illicit recording for the purposes of that dealing; and

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(b) if that dealing infringes any right conferred by [F686this Chapter] , it shall be treated as an illicit recording for all subsequent purposes.

(3) In sub-paragraph (2), “dealt with” means sold or let for hire, offered or exposed for sale or hire or communicated to the public.

(4) Expressions used in this paragraph have the same meaning as in section 70.]

Annotations:

Amendments (Textual) F686 Words in Sch. 2 para. 17A(1)(2)(b) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

[F687Photographs of broadcasts

Annotations:

Amendments (Textual) F687 Sch. 2 para. 17B and preceding heading inserted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 20(2) (with regs. 31-40)

17B (1) The making in domestic premises for private and domestic use of a photograph of the whole or any part of an image forming part of a broadcast, or a copy of such a photograph, does not infringe any right conferred by [F688this Chapter] in relation to a performance or recording included in the broadcast.

(2) Where a recording which would otherwise be an illicit recording is made in accordance with this paragraph but is subsequently dealt with—

(a) it shall be treated as an illicit recording for the purposes of that dealing; and (b) if that dealing infringes any right conferred by [F688this Chapter] , it shall be

treated as an illicit recording for all subsequent purposes.

(3) In sub-paragraph (2), “dealt with” means sold or let for hire, offered or exposed for sale or hire or communicated to the public.

(4) Expressions used in this paragraph have the same meaning as in section 71.]

Annotations:

Amendments (Textual) F688 Words in Sch. 2 para. 17B(1)(2)(b) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

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Free public showing or playing of broadcast F689. . .

Annotations:

Amendments (Textual) F689 Words in heading preceding Sch.2 para. 18 repealed (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

18 (1) The showing or playing in public of a broadcast F690. . . to an audience who have not paid for admission to the place where the broadcast . . . is to be seen or heard does not infringe any right conferred by [F691this Chapter] in relation to a performance or recording included in—

(a) the broadcast . . . , or (b) any sound recording [F692(except so far as it is an excepted sound recording)]

or film which is played or shown in public by reception of the broadcast . . . .

[F693(1A) The showing or playing in public of a broadcast to an audience who have not paid for admission to the place where the broadcast is to be seen or heard does not infringe any right conferred by [F691this Chapter] in relation to a performance or recording included in any excepted sound recording which is played in public by reception of the broadcast, if the playing or showing of that broadcast in public—

(a) F694. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) is necessary for the purposes of—

(i) repairing equipment for the reception of broadcasts; (ii) demonstrating that a repair to such equipment has been carried out;

or (iii) demonstrating such equipment which is being sold or let for hire or

offered or exposed for sale or hire.]

part)— (i) at prices which are substantially attributable to the facilities afforded

for seeing or hearing the broadcast F695. . . , or (ii) at prices exceeding those usually charged there and which are partly

attributable to those facilities.

only for membership of the club or society and the provision of facilities for seeing or hearing broadcasts . . . is only incidental to the main purposes of the club or society.

(4) Where the making of the broadcast . . . was an infringement of the rights conferred by [F691this Chapter] in relation to a performance or recording, the fact that it was heard or seen in public by the reception of the broadcast . . . shall be taken into account in assessing the damages for that infringement.

(5) Expressions used in this paragraph have the same meaning as in section 72.

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Annotations:

Amendments (Textual) F690 Words in Sch. 2 para. 18(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F691 Words in Sch. 2 para. 18(1)(1A)(4) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8) F692 Words in Sch. 2 para. 18(1)(b) inserted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 21(2)(a) (with regs. 31-40) F693 Sch. 2 para. 18(1A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(2)(b) (with regs. 31-40) F694 Sch. 2 para. 18(1A)(a) omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988

(Amendment) Regulations 2010 (S.I. 2010/2694), art. 4(2) F695 Words in Sch. 2 para. 18(2)(b)(i)(3)(4) repealed (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F696Reception and re-transmission of [F697wireless broadcast by cable]]

Annotations:

Amendments (Textual) F696 Crossheading substituted (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 5 (with s. 43(6)); S.I. 1996/2120,

art. 4(1), Sch. 1 F697 Words in heading preceding Sch. 2 para. 19 substituted (31.10.2003) by The Copyright and Related

Rights Regulations 2003 (S.I.2003/2498), reg. 22(3)(a) (with regs. 31-40)

[F69819(1) This paragraph applies where a [F699wireless] broadcast made from a place in the United Kingdom is, [F700received and immediately re-transmitted by cable].

(2) The rights conferred by [F701this Chapter] in relation to a performance or recording included in the broadcast are not infringed if and to the extent that the broadcast is made for reception in the area in which [F702it is re-transmitted by cable]; but where the making of the broadcast was an infringement of those rights, the fact that the broadcast was re-transmitted [F703by cable] shall be taken into account in assessing the damages for that infringement.

(3) Where— (a) the [F704re-transmission by cable] is in pursuance of a relevant requirement,

but (b) to any extent, the area in which the [F705re-transmission by cable takes place]

(“the cable area”) falls outside the area for reception in which the broadcast is made (“the broadcast area”),

the [F706re-transmission by cable] (to the extent that it is provided for so much of the cable area as falls outside the broadcast area) of any performance or recording included in the broadcast shall, subject to sub-paragraph (4), be treated as licensed by the owner of the rights conferred by [F701this Chapter] in relation to the performance or recording, subject only to the payment to him by the person making the broadcast of such reasonable royalty or other payment in respect of the [F707re-transmission by

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cable of the broadcast] as may be agreed or determined in default of agreement by the Copyright Tribunal.

(4) Sub-paragraph (3) does not apply if, or to the extent that, the [F708re-transmission of the performance or recording by cable] is (apart from that sub-paragraph) licensed by the owner of the rights conferred by [F701this Chapter] in relation to the performance or recording.

(5) The Secretary of State may by order— (a) provide that in specified cases sub-paragraph (2) is to apply in relation to

broadcasts of a specified description which are not made as mentioned in that sub-paragraph, or

(b) exclude the application of that sub-paragraph in relation to broadcasts of a specified description made as mentioned in that sub-paragraph.

(6) Where the Secretary of State exercises the power conferred by sub-paragraph (5) (b) in relation to broadcasts of any description, the order may also provide for sub- paragraph (3) to apply, subject to such modifications as may be specified in the order, in relation to broadcasts of that description.

(7) An order under this paragraph may contain such transitional provision as appears to the Secretary of State to be appropriate.

(8) An order under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(9) Expressions used in this paragraph have the same meaning as in section 73.]

Annotations:

Amendments (Textual) F698 Sch. 2 para. 19 substituted (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 5 (with s. 43(6)); S.I.

1996/2120, art. 4(1), Sch. 1 F699 Word in Sch. 2 para. 19(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 22(3)(b)(i) (with regs. 31-40) F700 Words in Sch. 2 para. 19(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 22(3)(b)(ii) (with regs. 31-40) F701 Words in Sch. 2 para. 19(2)(3)(4) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8) F702 Words in Sch. 2 para. 19(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S. I. 2003/2498), reg. 22(3)(c)(i) (with regs. 31-40) F703 Words in Sch. 2 para. 19(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 22(3)(c)(ii) (with regs. 31-40) F704 Words in Sch. 2 para. 19(3)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 22(3)(d)(i) (with regs. 31-40) F705 Words in Sch. 2 para. 19(3)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 22(3)(d)(ii) (with regs. 31-40) F706 Words in Sch. 2 para. 19(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 22(3)(d)(iii) (with regs. 31-40) F707 Words in Sch. 2 para. 19(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 22(3)(d)(iv) (with regs. 31-40) F708 Words in Sch. 2 para. 19(4) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 22(3)(e) (with regs. 31-40)

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[F70919A(1) An application to settle the royalty or other sum payable in pursuance of sub- paragraph (3) of paragraph 19 may be made to the Copyright Tribunal by the owner of the rights conferred by [F710this Chapter] or the person making the broadcast.

(2) The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.

(4) An application under sub-paragraph (3) shall not, except with the special leave of the Tribunal, be made within twelve months from the date of the original order or of the order on a previous application under that sub-paragraph.

(5) An order under sub-paragraph (3) has effect from the date on which it is made or such later date as may be specified by the Tribunal.]

Annotations:

Amendments (Textual) F709 Sch. 2 para. 19A inserted (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 6 (with s. 43(6)); S.I. 1996/2120,

art. 4(1), Sch. 1 F710 Words in Sch. 2 para. 19A(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

Provision of sub-titled copies of broadcast F711. . .

Annotations:

Amendments (Textual) F711 Words in heading preceding Sch. 2 para. 20 repealed (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

20 (1) A designated body may, for the purpose of providing people who are deaf or hard of hearing, or physically or mentally handicapped in other ways, with copies which are sub-titled or otherwise modified for their special needs, make recordings of [F712broadcasts and copies of such recordings, and issue or lend copies to the public,] without infringing any right conferred by [F713this Chapter] in relation to a performance or recording included in the broadcast F714. . . .

[F715(1A) This paragraph does not apply if, or to the extent that, there is a licensing scheme certified for the purposes of this paragraph under paragraph 16 of Schedule 2A providing for the grant of licences.]

(2) In this paragraph “designated body” means a body designated for the purposes of section 74 and other expressions used in this paragraph have the same meaning as in that section.

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Annotations:

Amendments (Textual) F712 Words in Sch. 2 para. 20(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 23(2)(a) (with regs. 31-40) F713 Words in Sch. 2 para. 20(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8) F714 Words in Sch. 2 para. 20(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F715 Sch. 2 para. 20(1A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 23(2)(b) (with regs. 31-40)

Recording of broadcast F716. . . for archival purposes

Annotations:

Amendments (Textual) F716 Words in heading preceding Sch. 2 para. 21 repealed (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

21 (1) A recording of a broadcast F717. . . of a designated class, or a copy of such a recording, may be made for the purpose of being placed in an archive maintained by a designated body without thereby infringing any right conferred by [F718this Chapter] in relation to a performance or recording included in the broadcast . . . .

(2) In this paragraph “designated class” and “designated body” means a class or body designated for the purposes of section 75 and other expressions used in this paragraph have the same meaning as in that section.

Annotations:

Amendments (Textual) F717 Words in Sch. 2 para. 21(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F718 Words in Sch. 2 para. 21(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8)

[F719SCHEDULE 2A

LICENSING OF PERFORMERS’ PROPERTY RIGHTS

Annotations:

Amendments (Textual) F719 Sch. 2A inserted (1.12.1996) by S.I. 1996/2967, reg. 22(2) (with Pt. III)

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Licensing schemes and licensing bodies 1 (1) In [F720this Chapter] a “licensing scheme” means a scheme setting out—

(a) the classes of case in which the operator of the scheme, or the person on whose behalf he acts, is willing to grant performers’ property right licences, and

(b) the terms on which licences would be granted in those classes of case; and for this purpose a “scheme” includes anything in the nature of a scheme, whether described as a scheme or as a tariff or by any other name.

(2) In [F720this Chapter] a “licensing body” means a society or other organisation which has as its main object, or one of its main objects, the negotiating or granting, whether as owner or prospective owner of a performer’s property rights or as agent for him, of performers’ property right licences, and whose objects include the granting of licences covering the performances of more than one performer.

(3) In this paragraph “performers’ property right licences” means licences to do, or authorise the doing of, any of the things for which consent is required under section 182A, [F721182B, 182C or 182CA] .

(4) References in [F722this Chapter] to licences or licensing schemes covering the performances of more than one performer do not include licences or schemes covering only—

(a) performances recorded in a single recording, (b) performances recorded in more than one recording where—

(i) the performers giving the performances are the same, or (ii) the recordings are made by, or by employees of or commissioned

by, a single individual, firm, company or group of companies. For purpose a group of companies means a holding company and its subsidiaries within the meaning of [F723section 1159 of the Companies Act 2006].

Annotations:

Amendments (Textual) F720 Words in Sch. 2A para. 1(1)(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 9 (with reg. 8) F721 Words in Sch. 2A para. 1(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 7(4)(a) (with reg. 31-40) F722 Words in Sch. 2A para. 1(4) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F723 Words in Sch. 2A para. 1(4) substituted (1.10.2009) by The Companies Act 2006 (Consequential

Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 98(b) (with art. 10)

References and applications with respect to licensing schemes 2 Paragraphs 3 to 8 (references and applications with respect to licensing schemes)

apply to licensing schemes operated by licensing bodies in relation to a performer’s property rights which cover the performances of more than one performer, so far as they relate to licences for—

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(a) copying a recording of the whole or any substantial part of a qualifying performance, F724. . .

[F725(aa) making such a recording available to the public in the way mentioned in section 182CA(1), or.]

(b) renting or lending copies of a recording to the public; and in those paragraphs “licensing scheme” means a licensing scheme of any of those descriptions.

Annotations:

Amendments (Textual) F724 Sch. 2A para. 2: word "or" appearing at the end of sub-para. (a) repealed (31.10.2003) by virtue of The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F725 Sch. 2A para. 2(aa) substituted (31.10.2003) for word "or" appearing at the end of sub-para. (a) by virtue

of The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 7(4)(b) (with regs. 31-40)

Reference of proposed licensing scheme to tribunal 3 (1) The terms of a licensing scheme proposed to be operated by a licensing body may be

referred to the Copyright Tribunal by an organisation claiming to be representative of persons claiming that they require licences in cases of a description to which the scheme would apply, either generally or in relation to any description of case.

(2) The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.

(3) If the Tribunal decides to entertain the reference it shall consider the matter referred and make such order, either confirming or varying the proposed scheme, either generally or so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.

(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

Reference of licensing scheme to tribunal 4 (1) If while a licensing scheme is in operation a dispute arises between the operator of

the scheme and— (a) a person claiming that he requires a licence in a case of a description to which

the scheme applies, or (b) an organisation claiming to be representative of such persons,

that person or organisation may refer the scheme to the Copyright Tribunal in so far as it relates to cases of that description.

(2) A scheme which has been referred to the Tribunal under this paragraph shall remain in operation until proceedings on the reference are concluded.

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(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

Further reference of scheme to tribunal 5 (1) Where the Copyright Tribunal has on a previous reference of a licensing scheme

under paragraph 3 or 4, or under this paragraph, made an order with respect to the scheme, then, while the order remains in force—

(a) the operator of the scheme, (b) a person claiming that he requires a licence in a case of the description to

which the order applies, or (c) an organisation claiming to be representative of such persons,

may refer the scheme again to the Tribunal so far as it relates to cases of that description.

(2) A licensing scheme shall not, except with the special leave of the Tribunal, be referred again to the Tribunal in respect of the same description of cases—

(a) within twelve months from the date of the order on the previous reference, or (b) if the order was made so as to be in force for 15 months or less, until the last

three months before the expiry of the order.

(3) A scheme which has been referred to the Tribunal under this paragraph shall remain in operation until proceedings on the reference are concluded.

(5) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

Application for grant of licence in connection with licensing scheme 6 (1) A person who claims, in a case covered by a licensing scheme, that the operator

of the scheme has refused to grant him or procure the grant to him of a licence in accordance with the scheme, or has failed to do so within a reasonable time after being asked, may apply to the Copyright Tribunal.

(2) A person who claims, in a case excluded from a licensing scheme, that the operator of the scheme either—

(b) proposes terms for a licence which are unreasonable,

may apply to the Copyright Tribunal.

(3) A case shall be regarded as excluded from a licensing scheme for the purposes of sub-paragraph (2) if—

(a) the scheme provides for the grant of licences subject to terms excepting matters from the licence and the case falls within such an exception, or

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(b) the case is so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be dealt with in the same way.

(5) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

Application for review of order as to entitlement to licence 7 (1) Where the Copyright Tribunal has made an order under paragraph 6 that a person

is entitled to a licence under a licensing scheme, the operator of the scheme or the original applicant may apply to the Tribunal to review its order.

(2) An application shall not be made, except with the special leave of the Tribunal— (a) within twelve months from the date of the order, or of the decision on a

previous application under this paragraph, or (b) if the order was made so as to be in force for 15 months or less, or as a

result of the decision on a previous application under this paragraph is due to expire within 15 months of that decision, until the last three months before the expiry date.

Effect of order of tribunal as to licensing scheme 8 (1) A licensing scheme which has been confirmed or varied by the Copyright Tribunal—

(a) under paragraph 3 (reference of terms of proposed scheme), or (b) under paragraph 4 or 5 (reference of existing scheme to Tribunal),

shall be in force or, as the case may be, remain in operation, so far as it relates to the description of case in respect of which the order was made, so long as the order remains in force.

(2) While the order is in force a person who in a case of a class to which the order applies —

(a) pays to the operator of the scheme any charges payable under the scheme in respect of a licence covering the case in question or, if the amount cannot be ascertained, gives an undertaking to the operator to pay them when ascertained, and

(b) complies with the other terms applicable to such a licence under the scheme, shall be in the same position as regards infringement of performers’ property rights as if he had at all material times been the holder of a licence granted by the rights owner in question in accordance with the scheme.

(3) The Tribunal may direct that the order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than

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the date on which the reference was made or, if later, on which the scheme came into operation.

If such a direction is made— (a) any necessary repayments, or further payments, shall be made in respect of

charges already paid, and (b) the reference in sub-paragraph (2)(a) to the charges payable under the

scheme shall be construed as a reference to the charges so payable by virtue of the order. No such direction may be made where sub-paragraph (4) below applies.

(4) An order of the Tribunal under paragraph 4 or 5 made with respect to a scheme which is certified for any purpose under paragraph 16 has effect, so far as it varies the scheme by reducing the charges payable for licences, from the date on which the reference was made to the Tribunal.

(5) Where the Tribunal has made an order under paragraph 6 (order as to entitlement to licence under licensing scheme) and the order remains in force, the person in whose favour the order is made shall if he—

(a) pays to the operator of the scheme any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and

(b) complies with the other terms specified in the order, be in the same position as regards infringement of performers’ property rights as if he had at all material times been the holder of a licence granted by the rights owner in question on the terms specified in the order.

References and applications with respect to licensing by licensing bodies 9 Paragraphs 10 to 13 (references and applications with respect to licensing by

licensing bodies) apply to licences relating to a performer’s property rights which cover the performance of more than one performer granted by a licensing body otherwise than in pursuance of a licensing scheme, so far as the licences authorise—

(a) copying a recording of the whole or any substantial part of a qualifying performance, F726. . .

[F727(aa) making such a recording available to the public in the way mentioned in section 182CA(1), or.]

(b) renting or lending copies of a recording to the public; and references in those paragraphs to a licence shall be construed accordingly.

Annotations:

Amendments (Textual) F726 Sch. 2A para. 9: word "or" appearing at the end of sub-para. (a) repealed (31.10.2003) by virtue of The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F727 Sch. 2A para. 9(aa) substituted (31.10.2003) for word "or" appearing at the end of sub-para. (a) by virtue

of The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 7(4)(b) (with regs. 31-40)

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Reference to tribunal of proposed licence 10 (1) The terms on which a licensing body proposes to grant a licence may be referred to

the Copyright Tribunal by the prospective licensee.

(2) The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.

(3) If the Tribunal decides to entertain the reference it shall consider the terms of the proposed licence and make such order, either confirming or varying the terms as it may determine to be reasonable in the circumstances.

(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

Reference to tribunal of expiring licence 11 (1) A licensee under a licence which is due to expire, by effluxion of time or as a result

of notice given by the licensing body, may apply to the Copyright Tribunal on the ground that it is unreasonable in the circumstances that the licence should cease to be in force.

(2) Such an application may not be made until the last three months before the licence is due to expire.

(3) A licence in respect of which a reference has been made to the Tribunal shall remain in operation until proceedings on the reference are concluded.

(5) An order of the Tribunal under this paragraph may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

Application for review of order as to licence 12 (1) Where the Copyright Tribunal has made an order under paragraph 10 or 11, the

licensing body or the person entitled to the benefit of the order may apply to the Tribunal to review its order.

(2) An application shall not be made, except with the special leave of the Tribunal— (a) within twelve months from the date of the order or of the decision on a

previous application under this paragraph, or (b) if the order was made so as to be in force for 15 months or less, or as a

result of the decision on a previous application under this paragraph is due to expire within 15 months of that decision, until the last three months before the expiry date.

(3) The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable in the circumstances.

Effect of order of tribunal as to licence 13 (1) Where the Copyright Tribunal has made an order under paragraph 10 or 11 and the

order remains in force, the person entitled to the benefit of the order shall if he—

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(a) pays to the licensing body any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and

(b) complies with the other terms specified in the order,

be in the same position as regards infringement of performers’ property rights as if he had at all material times been the holder of a licence granted by the rights owner in question on the terms specified in the order.

(2) The benefit of the order may be assigned— (a) in the case of an order under paragraph 10, if assignment is not prohibited

under the terms of the Tribunal’s order; and (b) in the case of an order under paragraph 11, if assignment was not prohibited

under the terms of the original licence.

(3) The Tribunal may direct that an order under paragraph 10 or 11, or an order under paragraph 12 varying such an order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference or application was made or, if later, on which the licence was granted or, as the case may be, was due to expire.

If such a direction is made— (a) any necessary repayments, or further payments, shall be made in respect of

charges already paid, and (b) the reference in sub-paragraph (1)(a) to the charges payable in accordance

with the order shall be construed, where the order is varied by a later order, as a reference to the charges so payable by virtue of the later order.

General considerations: unreasonable discrimination 14 (1) In determining what is reasonable on a reference or application under this Schedule

relating to a licensing scheme or licence, the Copyright Tribunal shall have regard to—

(a) the availability of other schemes, or the granting of other licences, to other persons in similar circumstances, and

(b) the terms of those schemes or licences,

and shall exercise its powers so as to secure that there is no unreasonable discrimination between licensees, or prospective licensees, under the scheme or licence to which the reference or application relates and licensees under other schemes operated by, or other licences granted by, the same person.

(2) This does not affect the Tribunal’s general obligation in any case to have regard to all relevant circumstances.

Application to settle royalty or other sum payable for lending 15 (1) An application to settle the royalty or other sum payable in pursuance of paragraph

14A of Schedule 2 (lending of certain recordings) may be made to the Copyright Tribunal by the owner of a performer’s property rights or the person claiming to be treated as licensed by him.

(2) The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.

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(5) An order under sub-paragraph (3) has effect from the date on which it is made or such later date as may be specified by the Tribunal.

Certification of licensing schemes 16 (1) A person operating or proposing to operate a licensing scheme may apply to the

Secretary of State to certify the scheme for the purposes of [F728paragraph 6, 14A or 20 of Schedule 2 (recording of broadcasts by educational establishments, lending of certain recordings, provision of sub-titled copies of broadcast)].

(2) The Secretary of State shall by order made by statutory instrument certify the scheme if he is satisfied that it—

(a) enables the works to which it relates to be identified with sufficient certainty by persons likely to require licences, and

(b) sets out clearly the charges (if any) payable and the other terms on which licences will be granted.

(3) The scheme shall be scheduled to the order and the certification shall come into operation for the purposes of [F729the relevant paragraph] of Schedule 2—

(a) on such date, not less than eight weeks after the order is made, as may be specified in the order, or

(b) if the scheme is the subject of a reference under paragraph 3 (reference of proposed scheme), any later date on which the order of the Copyright Tribunal under that paragraph comes into force or the reference is withdrawn.

(4) A variation of the scheme is not effective unless a corresponding amendment of the order is made; and the Secretary of State shall make such an amendment in the case of a variation ordered by the Copyright Tribunal on a reference under paragraph 3, 4 or 5, and may do so in any other case if he thinks fit.

(5) The order shall be revoked if the scheme ceases to be operated and may be revoked if it appears to the Secretary of State that it is no longer being operated according to its terms.

Annotations:

Amendments (Textual) F728 Words in Sch. 2A para. 16(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 17(a) (with regs. 31-40) F729 Words in Sch. 2A para. 16(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 17(b) (with regs. 31-40)

320 Copyright, Designs and Patents Act 1988 (c. 48) SCHEDULE 2A – LICENSING OF PERFORMERS’ PROPERTY RIGHTS

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Powers exercisable in consequence of competition report 17[F730(1) Sub-paragraph (1A) applies where whatever needs to be remedied, mitigated or

prevented by the Secretary of State, the Competition Commission or (as the case may be) the Office of Fair Trading under section 12(5) of the Competition Act 1980 or section 41(2), 55(2), 66(6), 75(2), 83(2), 138(2), 147(2) or 160(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following references to the Commission in connection with public bodies and certain other persons, mergers or market investigations etc.) consists of or includes—

(a) conditions in licences granted by the owner of a performer’s property rights restricting the use to which a recording may be put by the licensee or the right of the owner to grant other licenses, or

(b) a refusal of an owner of a performer’s property rights to grant licences on reasonable terms.

(3) [F731The Secretary of State, the Competition Commission or (as the case may be) the Office of Fair Trading] shall only exercise the powers available by virtue of this paragraph if he [F732or it] is satisfied that to do so does not contravene any Convention relating to performers’ rights to which the United Kingdom is a party.

(4) The terms of a licence available by virtue of this paragraph shall, in default of agreement, be settled by the Copyright Tribunal on an application by the person requiring the licence; and terms so settled shall authorise the licensee to do everything in respect of which a licence is so available.

(5) Where the terms of a licence are settled by the Tribunal, the licence has effect from the date on which the application to the Tribunal was made.

Annotations:

Amendments (Textual) F730 Sch. 2A para. 17(1)(1A)(2) substituted (20.6.2003 for certain purposes and 29.12.2004 otherwise) for

Sch. 2A para. 17(1)(2) by 2002 c. 40, ss. 278(1), 279, Sch. 25 para. 18(5)(a); S.I. 2003/1397, arts. 2, 3(1), Sch. (with arts. 4-12); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

F731 Words in Sch. 2A para. 17(3) substituted (20.6.2003 for certain purposes and 29.12.2004 otherwise) by 2002 c. 40, ss. 278(1), 279, Sch. 25 para. 18(5)(b)(i); S.I. 2003/1397, arts. 2, 3(1), Sch. (with arts. 4-12); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

F732 Words in Sch. 2A para. 17(3) inserted (20.6.2003 for certain purposes and 29.12.2004 otherwise) by 2002 c. 40, ss. 278(1), 279, Sch. 25 para. 18(5)(b)(ii); S.I. 2003/1397, arts. 2, 3(1), Sch. (with arts. 4-12); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

Modifications etc. (not altering text) C127 Sch. 2A para. 17(1) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests)

Order 2003 (S.I. 2003/1592), Sch. 4 para. 7(3)(a)

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C128 Sch. 2A para. 17(2) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), Sch. 4 para. 7(3)(b)

SCHEDULE 3 Section 272.

REGISTERED DESIGNS: MINOR AND CONSEQUENTIAL AMENDMENTS OF 1949 ACT

Annotations:

Modifications etc. (not altering text) C129 Sch. 3 extended (with modifications) (Isle of Man) (9.12.2001) by S.I. 2001/3678, art. 3, Sch. 3

Section 3: proceedings for registration F7331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F733 Sch. 3 para. 1 repealed (9.12.2001) by S.I. 2001/3949, reg. 9(2), Sch. 2 (with transitional provisions in

regs. 10-14)

Section 4: registration of same design in respect of other articles, etc. F7342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F734 Sch. 3 para. 2 repealed (9.12.2001) by S.I. 2001/3949, reg. 9(2), Sch. 2 (with transitional provisions in

regs. 10-14)

Section 5: provisions for secrecy of certain designs 3 (1) Section 5 of the Registered Designs Act 1949 is amended as follows.

(2) For “a competent authority” or “the competent authority”, wherever occurring, substitute “ the Secretary of State ”; and in subsection (3)(c) for “that authority” substitute “ he ”.

(3) For subsection (2) substitute—

“(2) The Secretary of State shall by rules make provision for securing that where such directions are given—

(a) the representation or specimen of the design, and (b) any evidence filed in support of the applicant’s contention that the

appearance of an article is material (for the purposes of section 1(3) of this Act),

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shall not be open to public inspection at the Patent Office during the continuance in force of the directions.”

F735(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Omit subsection (5).

Annotations:

Amendments (Textual) F735 Sch. 3 para. 3(4) repealed (9.12.2001) by S.I. 2001/3949, reg. 9(2), Sch. 2 (with transitional provisions

in regs. 10-14)

Section 6: provisions as to confidential disclosure, etc. F7364 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F736 Sch. 3 para. 4 repealed (9.12.2001) by S.I. 2001/3949, reg. 9(2), Sch. 2 (with transitional provisions in

regs. 10-14)

Section 9: exemption of innocent infringer from liability for damages 5 In section 9 of the M65Registered Designs Act 1949 (exemption of innocent infringer

from liability for damages), in subsections (1) and (2) for “copyright in a registered design” substitute “ the right in a registered design ”.

Annotations:

Marginal Citations M65 1949 c. 88.

Section 11: cancellation of registration F7376 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F737 Sch. 3 para. 6 repealed (9.12.2001) by S.I. 2001/3949, reg. 9(2), Sch. 2 (with transitional provisions in

regs. 10-14)

Section 14: registration where application has been made in convention country 7 In section 14 of the Registered Designs Act 1949 (registration where application

has been made in convention country), for subsections (2) and (3) substitute—

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“(2) Where an application for registration of a design is made by virtue of this section, the application shall be treated, for the purpose of determining whether that or any other design is new, as made on the date of the application for protection in the convention country or, if more than one such application was made, on the date of the first such application.

(3) Subsection (2) shall not be construed as excluding the power to give directions under section 3(4) of this Act in relation to an application made by virtue of this section.”.

Section 15: extension of time for application under s.14 in certain cases 8 In section 15(1) of the M66Registered Designs Act 1949 (power to make rules

empowering registrar to extend time for applications under s.14) for “the Board of Trade are satisfied” substitute “ the Secretary of State is satisfied ” and for “they” substitute “ he ”.

Annotations:

Marginal Citations M66 1949 c. 88.

Section 16: protection of designs communicated under international agreements F7389 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F738 Sch. 3 para. 9 repealed (9.12.2001) by S.I. 2001/3949, reg. 9(2), Sch. 2 (with transitional provisions in

regs. 10-14)

Section 19: registration of assignments, &c. 10 In section 19 of the Registered Designs Act 1949 (registration of assignments, &c.),

after subsection (3) insert—

“(3A) Where design right subsists in a registered design, the registrar shall not register an interest under subsection (3) unless he is satisfied that the person entitled to that interest is also entitled to a corresponding interest in the design right.

(3B) Where design right subsists in a registered design and the proprietor of the registered design is also the design right owner, an assignment of the design right shall be taken to be also an assignment of the right in the registered design, unless a contrary intention appears.”.

Section 20: rectification of the register 11 In section 20 of the Registered Designs Act 1949 (rectification of the register), after

subsection (4) add—

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“(5) A rectification of the register under this section has effect as follows— (a) an entry made has effect from the date on which it should have been

made, (b) an entry varied has effect as if it had originally been made in its

varied form, and (c) an entry deleted shall be deemed never to have had effect,

nless, in any case, the court directs otherwise.”.

Section 22: inspection of registered designs 12 (1) Section 22 of the Registered Designs Act 1949 (inspection of registered designs) is

amended as follows.

(2) For subsection (1) substitute—

“(1) Where a design has been registered under this Act, there shall be open to inspection at the Patent Office on and after the day on which the certificate of registration is issued—

(a) the representation or specimen of the design, and (b) any evidence filed in support of the applicant’s contention that the

appearance of an article is material (for the purposes of section 1(3) of this Act).

This subsection has effect subject to the following provisions of this section and to any rules made under section 5(2) of this Act.”.

(3) In subsection (2), subsection (3) (twice) and subsection (4) for “representation or specimen of the design” substitute “ representation, specimen or evidence ”.

Section 23: information as to existence of right in registered design 13 For section 23 of the M67Registered Designs Act 1949 (information as to existence

of right in registered design) substitute—

“23 Information as to existence of right in registered design.

On the request of a person furnishing such information as may enable the registrar to identify the design, and on payment of the prescribed fee, the registrar shall inform him—

(a) whether the design is registered and, if so, in respect of what articles, and

(b) whether any extension of the period of the right in the registered design has been granted,

and shall state the date of registration and the name and address of the registered proprietor.”.

Annotations:

Marginal Citations M67 1949 c. 88.

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Section 25: certificate of contested validity of registration 14 In section 25 of the Registered Designs Act 1949 (certificate of contested validity of

registration), in subsection (2) for “the copyright in the registered design”substitute “ the right in the registered design ”.

Section 26: remedy for groundless threats of infringement proceedings 15 (1) Section 26 of the Registered Designs Act 1949 (remedy for groundless threats of

infringement proceedings) is amended as follows.

(2) In subsections (1) and (2) for “the copyright in a registered design” substitute “ the right in a registered design ”.

(3) After subsection (2) insert—

“(2A) Proceedings may not be brought under this section in respect of a threat to bring proceedings for an infringement alleged to consist of the making or importing of anything.”.

Section 27: the court 16 For section 27 of the Registered Designs Act 1949 (the court) substitute—

“27 The court.

(1) In this Act “the court” means— (a) in England and Wales the High Court or any patents county court

having jurisdiction by virtue of an order under section 287 of the Copyright, Designs and Patents Act 1988,

(b) in Scotland, the Court of Session, and (c) in Northern Ireland, the High Court.

(2) Provision may be made by rules of court with respect to proceedings in the High Court in England and Wales for references and applications under this Act to be dealt with by such judge of that court as the Lord Chancellor may select for the purpose.”.

Section 28: the Appeal Tribunal 17 (1) Section 28 of the Registered Designs Act 1949 (the Appeal Tribunal) is amended

as follows.

(2) For subsection (2) (members of Tribunal) substitute—

“(2) The Appeal Tribunal shall consist of— (a) one or more judges of the High Court nominated by the Lord

Chancellor, and (b) one judge of the Court of Session nominated by the Lord President

of that Court.”.

(3) In subsection (5) (costs), after “costs” (twice) insert “ or expenses ”, and for the words from “and any such order” to the end substitute—

“and any such order may be enforced—

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(a) in England and Wales or Northern Ireland, in the same way as an order of the High Court;

(b) in Scotland, in the same way as a decree for expenses granted by the Court of Session.”.

(4) For subsection (10) (seniority of judges) substitute—

“(10) In this section “the High Court” means the High Court in England and Wales; and for the purposes of this section the seniority of judges shall be reckoned by reference to the dates on which they were appointed judges of that court or the Court of Session.”.

(5) The amendments to section 28 made by section 10(5) of the M68Administration of Justice Act 1970 (power to make rules as to right of audience) shall be deemed always to have extended to Northern Ireland.

Annotations:

Marginal Citations M68 1970 c. 31.

Section 29: exercise of discretionary powers of registrar 18 In section 29 of the M69Registered Designs Act 1949 (exercise of discretionary

powers of registrar) for “the registrar shall give” substitute “ rules made by the Secretary of State under this Act shall require the registrar to give ”.

Annotations:

Marginal Citations M69 1949 c. 88.

Section 30: costs and security for costs 19 For section 30 of the Registered Designs Act 1949 (costs and security for costs)

substitute—

“30 Costs and security for costs.

(1) Rules made by the Secretary of State under this Act may make provision empowering the registrar, in any proceedings before him under this Act—

(a) to award any party such costs as he may consider reasonable, and (b) to direct how and by what parties they are to be paid.

(2) Any such order of the registrar may be enforced— (a) in England and Wales or Northern Ireland, in the same way as an

order of the High Court; (b) in Scotland, in the same way as a decree for expenses granted by

the Court of Session.

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(3) Rules made by the Secretary of State under this Act may make provision empowering the registrar to require a person, in such cases as may be prescribed, to give security for the costs of—

(a) an application for cancellation of the registration of a design, (b) an application for the grant of a licence in respect of a registered

design, or (c) an appeal from any decision of the registrar under this Act,

and enabling the application or appeal to be treated as abandoned in default of such security being given.”.

Section 31: evidence before registrar 20 For section 31 of the M70Registered Designs Act 1949 (evidence before registrar)

substitute—

“31 Evidence before registrar.

Rules made by the Secretary of State under this Act may make provision— (a) as to the giving of evidence in proceedings before the registrar under

this Act by affidavit or statutory declaration; (b) conferring on the registrar the powers of an official referee of the

Supreme Court as regards the examination of witnesses on oath and the discovery and production of documents; and

(c) applying in relation to the attendance of witnesses in proceedings before the registrar the rules applicable to the attendance of witnesses in proceedings before such a referee.”.

Annotations:

Marginal Citations M70 1949 c. 88.

Section 32: power of registrar to refuse to deal with certain agents 21 Section 32 of the Registered Designs Act 1949 (power of registrar to refuse to deal

with certain agents) is repealed.

Section 33: offences under s.5 (secrecy of certain designs) 22 (1) Section 33 of the Registered Designs Act 1949 (offences under s.5 (secrecy of certain

designs)) is amended as follows.

(2) In subsection (1), for paragraphs (a) and (b) substitute— “(a) on conviction on indictment to imprisonment for a term not

exceeding two years or a fine, or both; (b) on summary conviction to imprisonment for a term not exceeding

six months or a fine not exceeding the statutory maximum, or both.”.

(3) Omit subsection (2).

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(4) The above amendments do not apply in relation to offences committed before the commencement of Part IV.

Section 34: falsification of register, &c. 23 (1) In section 34 of the Registered Designs Act 1949 (falsification of register, &c.) for

“shall be guilty of a misdemeanour” substitute—

“shall be guilty of an offence and liable— (a) on conviction on indictment to imprisonment for a term not

exceeding two years or a fine, or both; (b) on summary conviction to imprisonment for a term not exceeding

six months or a fine not exceeding the statutory maximum, or both.”.

(2) The above amendment does not apply in relation to offences committed before the commencement of Part IV.

Section 35: fine for falsely representing a design as registered 24 (1) Section 35 of the M71Registered Designs Act 1949 (fine for falsely representing a

design as registered) is amended as follows.

(2) In subsection (1) for the words from “a fine not exceeding £50” substitute “ a fine not exceeding level 3 on the standard scale ”.

(3) In subsection (2)— (a) for “the copyright in a registered design” substitute “ the right in a registered

design ”; (b) for “subsisting copyright in the design” substitute “ subsisting right in the

design under this Act ”; and (c) for the words from “a fine” to the end substitute “ a fine not exceeding level

1 on the standard scale ”.

(4) The amendment in sub-paragraph (2) does not apply in relation to offences committed before the commencement of Part IV.

Annotations:

Marginal Citations M71 1949 c. 88.

Section 35A: offence by body corporate - liability of officers 25 (1) In the Registered Designs Act 1949 after section 35 insert—

“35A Offence by body corporate: liability of officers.

(1) Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

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(2) In relation to a body corporate whose affairs are managed by its members “director” means a member of the body corporate.”.

(2) The above amendment does not apply in relation to offences committed before the commencement of Part IV.

Section 36: general power to make rules, &c. 26 (1) Section 36 of the Registered Designs Act 1949 (general power to make rules, &c.)

is amended as follows.

(2) In subsection (1) for “the Board of Trade” and “the Board” substitute “ the Secretary of State ”, and for “as they think expedient” substitute “ as he thinks expedient ”.

(3) For the words in subsection (1) from “and in particular” to the end substitute the following subsections—

“(1A) Rules may, in particular, make provision— (a) prescribing the form of applications for registration of designs and

of any representations or specimens of designs or other documents which may be filed at the Patent Office, and requiring copies to be furnished of any such representations, specimens or documents;

(b) regulating the procedure to be followed in connection with any application or request to the registrar or in connection with any proceeding before him, and authorising the rectification of irregularities of procedure;

(d) regulating the keeping of the register of designs; (e) authorising the publication and sale of copies of representations of

designs and other documents in the Patent Office; (f) prescribing anything authorised or required by this Act to be

prescribed by rules.

(1B) The remuneration of an adviser appointed to assist the registrar shall be determined by the Secretary of State with the consent of the Treasury and shall be defrayed out of money provided by Parliament.”.

Section 37: provisions as to rules and Orders 27 (1) Section 37 of the M72Registered Designs Act 1949 (provisions as to rules and orders)

is amended as follows.

(2) Omit subsection (1) (duty to advertise making of rules).

(3) In subsections (2), (3) and (4) for “the Board of Trade” substitute “ the Secretary of State ”.

Annotations:

Marginal Citations M72 1949 c. 88.

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Section 38: proceedings of the Board of Trade 28 Section 38 of the Registered Designs Act 1949 (proceedings of the Board of Trade)

is repealed.

Section 39: hours of business and excluded days 29 In section 39 of the Registered Designs Act 1949 (hours of business and excluded

days), in subsection (1) for “the Board of Trade” substitute “ the Secretary of State ”.

Section 40: fees 30 In section 40 of the Registered Designs Act 1949 (fees) for “the Board of Trade”

substitute “ the Secretary of State ”.

Section 44: interpretation 31 (1) In section 44 of the Registered Designs Act 1949 (interpretation), subsection (1) is

amended as follows. F739(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) At the appropriate place insert—

““author” in relation to a design, has the meaning given by section 2(3) and (4);”.

(4) Omit the definition of “copyright”.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) For the definition of “court” substitute—

““the court” shall be construed in accordance with section 27 of this Act;”.

(7) In the definition of “design” for “subsection (3) of section one of this Act” substitute “ section 1(1) of this Act ”.

(8) At the appropriate place insert—

““employee”, “employment” and “employer” refer to employment under a contract of service or of apprenticeship,”.

(9) Omit the definition of “Journal”.

(10) In the definition of “prescribed” for “the Board of Trade” substitute “ the Secretary of State ”.

Annotations:

Amendments (Textual) F739 Sch. 3 para. 31(2)(5) repealed (9.12.2001) by S.I. 2001/3949, reg. 9(2), Sch. 2 (with transitional

provisions in regs. 10-14)

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Section 45: application to Scotland 32 In section 45 of the M73Registered Designs Act 1949 (application to Scotland), omit

paragraphs (1) and (2).

Annotations:

Marginal Citations M73 1949 c. 88.

Section 46: application to Northern Ireland 33 (1) Section 46 of the Registered Designs Act 1949 (application to Northern Ireland) is

amended as follows.

(2) Omit paragraphs (1) and (2).

(3) For paragraph (3) substitute—

“(3) References to enactments include enactments comprised in Northern Ireland legislation:”.

(4) After paragraph (3) insert—

“(3A) References to the Crown include the Crown in right of Her Majesty’s Government in Northern Ireland:”.

(5) In paragraph (4) for “a department of the Government of Northern Ireland” substitute “ a Northern Ireland department ”, and at the end add “ and in relation to a Northern Ireland department references to the Treasury shall be construed as references to the Department of Finance and Personnel ”.

Section 47: application to Isle of Man 34 For section 47 of the Registered Designs Act 1949 (application to Isle of Man)

substitute—

“47 Application to Isle of Man.

This Act extends to the Isle of Man, subject to any modifications contained in an Order made by Her Majesty in Council, and accordingly, subject to any such Order, references in this Act to the United Kingdom shall be construed as including the Isle of Man.”.

Section 47A: territorial waters and the continental shelf 35 In the Registered Designs Act 1949, after section 47 insert—

“47A Territorial waters and the continental shelf.

(1) For the purposes of this Act the territorial waters of the United Kingdom shall be treated as part of the United Kingdom.

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(2) This Act applies to things done in the United Kingdom sector of the continental shelf on a structure or vessel which is present there for purposes directly connected with the exploration of the sea bed or subsoil or the exploitation of their natural resources as it applies to things done in the United Kingdom.

(3) The United Kingdom sector of the continental shelf means the areas designated by order under section 1(7) of the Continental Shelf Act 1964.”.

Section 48: repeals, savings and transitional provisions 36 In section 48 of the Registered Designs Act 1949 (repeals, savings and transitional

provisions), omit subsection (1) (repeals).

Schedule 1: provisions as to Crown use of registered designs 37 (1) The First Schedule to the M74Registered Designs Act 1949 (provisions as to Crown

use of registered designs) is amended as follows.

(2) In paragraph 2(1) after “copyright” insert “ or design right ”.

(3) In paragraph 3(1) omit “in such manner as may be prescribed by rules of court”.

(4) In paragraph 4(2) (definition of “period of emergency”) for the words from “the period ending” to “any other period” substitute “ a period ”.

(5) For paragraph 4(3) substitute—

“(3) No Order in Council under this paragraph shall be submitted to Her Majesty unless a draft of it has been laid before and approved by a resolution of each House of Parliament.”.

Annotations:

Marginal Citations M74 1949 c. 88.

Schedule 2: enactments repealed 38 Schedule 2 to the Registered Designs Act 1949 (enactments repealed) is repealed.

SCHEDULE 4 Section 273.

THE REGISTERED DESIGNS ACT 1949 AS AMENDED ARRANGEMENT OF SECTIONS

Annotations:

Modifications etc. (not altering text) C130 Sch. 4 extended (with modifications) (Isle of Man) (9.12.2001) by S.I. 2001/3678, art. 3, Sch. 3

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Registrable designs and proceedings for registration 1 Designs registrable under Act. 2 Proprietorship of designs. 3 Proceedings for registration. 4 Registration of same design in respect of other articles. 5 Provision for secrecy of certain designs. 6 Provisions as to confidential disclosure, &c.

Effect of registration, &c. 7 Right given by registration. 8 Duration of right in registered design. 8A Restoration of lapsed right in design. 8B Effect of order for restoration of right. 9 Exemption of innocent infringer from liability for damages. 10 Compulsory licence in respect of registered design. 11 Cancellation of registration. 11A Powers exercisable for protection of the public interest. 11B Undertaking to take licence of right in infringement proceedings. 12 Use for services of the Crown.

International arrangements 13 Orders in Council as to convention countries. 14 Registration of design where application for protection in convention country has

been made. 15 Extension of time for applications under s.14 in certain cases. 16 Protection of designs communicated under international agreements.

Register of designs, &c. 17 Register of designs. 18 Certificate of registration. 19 Registration of assignments, &c. 20 Rectification of register. 21 Power to correct clerical errors. 22 Inspection of registered designs. 23 Information as to existence of right in registered design. 24 ... ... ... ... ... ... ...

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Legal proceedings and appeals 25 Certificate of contested validity of registration. 26 Remedy for groundless threats of infringement proceedings. 27 The court. 28 The Appeal Tribunal.

Powers and duties of registrar 29 Exercise of discretionary powers of registrar. 30 Costs and security for costs. 31 Evidence before registrar. 32 ... ... ... ... ... ... ... 33 Offences under s.5. 34 Falsification of register, &c. 35 Fine for falsely representing a design as registered. 35A Offence by body corporate: liability of officers.

Rules, &c. 36 General power of Secretary of State to make rules, &c. 37 Provisions as to rules and Orders. 38 ... ... ... ... ... ... ...

Supplemental 39 Hours of business and excluded days. 40 Fees. 41 Service of notices, &c., by post. 42 Annual report of registrar. 43 Savings. 44 Interpretation. 45 Application to Scotland. 46 Application to Northern Ireland. 47 Application to Isle of Man. 47A Territorial waters and the continental shelf. 48 Repeals, savings and transitional provisions. 49 Short title and commencement.

Schedules:

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Schedule 1—Provisions as to the use of registered designs for the services of the Crown and as to rights of third parties in respect of such use.

Schedule 2—... ... ... ... ... ... ...

An Act to consolidate certain enactments relating to registered designs.

[16th December 1949]

Registrable designs and proceedings for registration

1 (1) In this Act “design” means features of shape, configuration, pattern or ornament applied to an article by any industrial process, being features which in the finished article appeal to and are judged by the eye, but does not include—

(a) a method or principle of construction, or (b) features of shape or configuration of an article which—

(i) are dictated solely by the function which the article has to perform, or

(ii) are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part.

(2) A design which is new may, upon application by the person claiming to be the proprietor, be registered under this Act in respect of any article, or set of articles, specified in the application.

(3) A design shall not be registered in respect of an article if the appearance of the article is not material, that is, if aesthetic considerations are not normally taken into account to a material extent by persons acquiring or using articles of that description, and would not be so taken into account if the design were to be applied to the article.

(4) A design shall not be regarded as new for the purposes of this Act if it is the same as a design—

(a) registered in respect of the same or any other article in pursuance of a prior application, or

(b) published in the United Kingdom in respect of the same or any other article before the date of the application,

or if it differs from such a design only in immaterial details or in features which are variants commonly used in the trade.

This subsection has effect subject to the provisions of sections 4, 6 and 16 of this Act.

(5) The Secretary of State may by rules provide for excluding from registration under this Act designs for such articles of a primarily literary or artistic character as the Secretary of State thinks fit.

2 (1) The author of a design shall be treated for the purposes of this Act as the original proprietor of the design, subject to the following provisions.

(1A) Where a design is created in pursuance of a commission for money or money’s worth, the person commissioning the design shall be treated as the original proprietor of the design.

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(1B) Where, in a case not falling within subsection (1A), a design is created by an employee in the course of his employment, his employer shall be treated as the original proprietor of the design.

(2) Where a design, or the right to apply a design to any article, becomes vested, whether by assignment, transmission or operation of law, in any person other than the original proprietor, either alone or jointly with the original proprietor, that other person, or as the case may be the original proprietor and that other person, shall be treated for the purposes of this Act as the proprietor of the design or as the proprietor of the design in relation to that article.

(3) In this Act the “author” of a design means the person who creates it.

(4) In the case of a design generated by computer in circumstances such that there is no human author, the person by whom the arrangements necessary for the creation of the design are made shall be taken to be the author.

3 (1) An application for the registration of a design shall be made in the prescribed form and shall be filed at the Patent Office in the prescribed manner.

(2) An application for the registration of a design in which design right subsists shall not be entertained unless made by the person claiming to be the design right owner.

(3) For the purpose of deciding whether a design is new, the registrar may make such searches, if any, as he thinks fit.

(4) The registrar may, in such cases as may be prescribed, direct that for the purpose of deciding whether a design is new an application shall be treated as made on a date earlier or later than that on which it was in fact made.

(5) The registrar may refuse an application for the registration of a design or may register the design in pursuance of the application subject to such modifications, if any, as he thinks fit; and a design when registered shall be registered as of the date on which the application was made or is treated as having been made.

(6) An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within such time as may be prescribed shall be deemed to be abandoned.

(7) An appeal lies from any decision of the registrar under this section.

4 (1) Where the registered proprietor of a design registered in respect of any article makes an application—

(a) for registration in respect of one or more other articles, of the registered design, or

(b) for registration in respect of the same or one or more other articles, of a design consisting of the registered design with modifications or variations not sufficient to alter the character or substantially to affect the identity thereof,

the application shall not be refused and the registration made on that application shall not be invalidated by reason only of the previous registration or publication of the registered design:

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Provided that the right in a design registered by virtue of this section shall not extend beyond the end of the period, and any extended period, for which the right subsists in the original registered design.

(2) Where any person makes an application for the registration of a design in respect of any article and either—

(a) that design has been previously registered by another person in respect of some other article; or

(b) the design to which the application relates consists of a design previously registered by another person in respect of the same or some other article with modifications or variations not sufficient to alter the character or substantially to affect the identity thereof,

then, if at any time while the application is pending the applicant becomes the registered proprietor of the design previously registered, the foregoing provisions of this section shall apply as if at the time of making the application the applicant had been the registered proprietor of that design.

5 (1) Where, either before or after the commencement of this Act, an application for the registration of a design has been made, and it appears to the registrar that the design is one of a class notified to him by the Secretary of State as relevant for defence purposes, he may give directions for prohibiting or restricting the publication of information with respect to the design, or the communication of such information to any person or class of persons specified in the directions.

(2) The Secretary of State shall by rules make provision for securing that where such directions are given—

(a) the representation or specimen of the design, and (b) any evidence filed in support of the applicant’s contention that the

appearance of an article is material (for the purposes of section 1(3) of this Act),

shall not be open to public inspection at the Patent Office during the continuance in force of the directions.

(3) Where the registrar gives any such directions as aforesaid, he shall give notice of the application and of the directions to the Secretary of State, and thereupon the following provisions shall have effect, that is to say:—

(a) the Secretary of State shall, upon receipt of such notice, consider whether the publication of the design would be prejudicial to the defence of the realm and unless a notice under paragraph (c) of this subsection has previously been given by that authority to the registrar, shall reconsider that question before the expiration of nine months from the date of filing of the application for registration of the design and at least once in every subsequent year;

(b) for the purpose aforesaid, the Secretary of State may, at any time after the design has been registered or, with the consent of the applicant, at any time before the design has been registered, inspect the representation or specimen of the design, or any such evidence as is mentioned in subsection (2)(b) above, filed in pursuance of the application;

(c) if upon consideration of the design at any time it appears to the Secretary of State that the publication of the design would not, or would no longer, be prejudicial to the defence of the realm, he shall give notice to the registrar to that effect;

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(d) on the receipt of any such notice the registrar shall revoke the directions and may, subject to such conditions, if any, as he thinks fit, extend the time for doing anything required or authorised to be done by or under this Act in connection with the application or registration, whether or not that time has previously expired.

(4) No person resident in the United Kingdom shall, except under the authority of a written permit granted by or on behalf of the registrar, make or cause to be made any application outside the United Kingdom for the registration of a design of any class prescribed for the purposes of this subsection unless—

(a) an application for registration of the same design has been made in the United Kingdom not less than six weeks before the application outside the United Kingdom; and

(b) either no directions have been given under subsection (1) of this section in relation to the application in the United Kingdom or all such directions have been revoked:

Provided that this subsection shall not apply in relation to a design for which an application for protection has first been filed in a country outside the United Kingdom by a person resident outside the United Kingdom.

... ... ... ...

6 (1) An application for the registration of a design shall not be refused, and the registration of a design shall not be invalidated, by reason only of—

(a) the disclosure of the design by the proprietor to any other person in such circumstances as would make it contrary to good faith for that other person to use or publish the design;

(b) the disclosure of the design in breach of good faith by any person other than the proprietor of the design; or

(c) in the case of a new or original textile design intended for registration, the acceptance of a first and confidential order for goods bearing the design.

(2) An application for the registration of a design shall not be refused and the registration of a design shall not be invalidated by reason only—

(a) that a representation of the design, or any article to which the design has been applied, has been displayed, with the consent of the proprietor of the design, at an exhibition certified by the Secretary of State for the purposes of this subsection;

(b) that after any such display as aforesaid, and during the period of the exhibition, a representation of the design or any such article as aforesaid has been displayed by any person without the consent of the proprietor; or

(c) that a representation of the design has been published in consequence of any such display as is mentioned in paragraph (a) of this subsection,

if the application for registration of the design is made not later than six months after the opening of the exhibition.

(3) An application for the registration of a design shall not be refused, and the registration of a design shall not be invalidated, by reason only of the communication of the design by the proprietor thereof to a government department or to any person authorised by a government department to consider the merits of the design, or of anything done in consequence of such a communication.

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(4) Where an application is made by or with the consent of the owner of copyright in an artistic work for the registration of a corresponding design, the design shall not be treated for the purposes of this Act as being other than new by reason only of any use previously made of the artistic work, subject to subsection (5).

(5) Subsection (4) does not apply if the previous use consisted of or included the sale, letting for hire or offer or exposure for sale or hire of articles to which had been applied industrially—

(a) the design in question, or (b) a design differing from it only in immaterial details or in features which are

variants commonly used in the trade, and that previous use was made by or with the consent of the copyright owner.

(6) The Secretary of State may make provision by rules as to the circumstances in which a design is to be regarded for the purposes of this section as “applied industrially” to articles, or any description of articles.

Effect of registration, &c.

7 (1) The registration of a design under this Act gives the registered proprietor the exclusive right—

(a) to make or import— (i) for sale or hire, or

(ii) for use for the purposes of a trade or business, or (b) to sell, hire or offer or expose for sale or hire,

an article in respect of which the design is registered and to which that design or a design not substantially different from it has been applied.

(2) The right in the registered design is infringed by a person who without the licence of the registered proprietor does anything which by virtue of subsection (1) is the exclusive right of the proprietor.

(3) The right in the registered design is also infringed by a person who, without the licence of the registered proprietor makes anything for enabling any such article to be made, in the United Kingdom or elsewhere, as mentioned in subsection (1).

(4) The right in the registered design is also infringed by a person who without the licence of the registered proprietor—

(a) does anything in relation to a kit that would be an infringement if done in relation to the assembled article (see subsection (1)), or

(b) makes anything for enabling a kit to be made or assembled, in the United Kingdom or elsewhere, if the assembled article would be such an article as is mentioned in subsection (1);

and for this purpose a “kit” means a complete or substantially complete set of components intended to be assembled into an article.

(5) No proceedings shall be taken in respect of an infringement committed before the date on which the certificate of registration of the design under this Act is granted.

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(6) The right in a registered design is not infringed by the reproduction of a feature of the design which, by virtue of section 1(1)(b), is left out of account in determining whether the design is registrable.

8 (1) The right in a registered design subsists in the first instance for a period of five years from the date of the registration of the design.

(a) anything done under or in relation to the right during that further period shall be treated as valid,

(b) an act which would have constituted an infringement of the right if it had not expired shall be treated as an infringement, and

(c) an act which would have constituted use of the design for the services of the Crown if the right had not expired shall be treated as such use.

(5) Where it is shown that a registered design— (a) was at the time it was registered a corresponding design in relation to an

artistic work in which copyright subsists, and (b) by reason of a previous use of that work would not have been registrable

but for section 6(4) of this Act (registration despite certain prior applications of design),

the right in the registered design expires when the copyright in that work expires, if that is earlier than the time at which it would otherwise expire, and it may not thereafter be renewed.

(6) The above provisions have effect subject to the proviso to section 4(1) (registration of same design in respect of other articles, &c.).

8A (1) Where the right in a registered design has expired by reason of a failure to extend, in accordance with section 8(2) or (4), the period for which the right subsists, an application for the restoration of the right in the design may be made to the registrar within the prescribed period.

(3) Notice of the application shall be published by the registrar in the prescribed manner.

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(6) Rules altering the period prescribed for the purposes of subsection (1) may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient.

8B (1) The effect of an order under section 8A for the restoration of the right in a registered design is as follows.

(2) Anything done under or in relation to the right during the period between expiry and restoration shall be treated as valid.

(3) Anything done during that period which would have constituted an infringement if the right had not expired shall be treated as an infringement—

(a) if done at a time when it was possible for an application for extension to be made under section 8(4); or

(b) if it was a continuation or repetition of an earlier infringing act.

(4) If after it was no longer possible for such an application for extension to be made, and before publication of notice of the application for restoration, a person—

(a) began in good faith to do an act which would have constituted an infringement of the right in the design if it had not expired, or

(b) made in good faith effective and serious preparations to do such an act, he has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the restoration of the right in the design; but this does not extend to granting a licence to another person to do the act.

(5) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (4) may—

(a) authorise the doing of that act by any partners of his for the time being in that business, and

(7) The above provisions apply in relation to the use of a registered design for the services of the Crown as they apply in relation to infringement of the right in the design.

9 (1) In proceedings for the infringement of the right in a registered design damages shall not be awarded against a defendant who proves that at the date of the infringement

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he was not aware, and had no reasonable ground for supposing, that the design was registered; and a person shall not be deemed to have been aware or to have had reasonable grounds for supposing as aforesaid by reason only of the marking of an article with the word “registered” or any abbreviation thereof, or any word or words expressing or implying that the design applied to the article has been registered, unless the number of the design accompanied the word or words or the abbreviation in question.

(2) Nothing in this section shall affect the power of the court to grant an injunction in any proceedings for infringement of the right in a registered design.

10 (1) At any time after a design has been registered any person interested may apply to the registrar for the grant of a compulsory licence in respect of the design on the ground that the design is not applied in the United Kingdom by any industrial process or means to the article in respect of which it is registered to such an extent as is reasonable in the circumstances of the case; and the registrar may make such order on the application as he thinks fit.

(2) An order for the grant of a licence shall, without prejudice to any other method of enforcement, have effect as if it were a deed executed by the registered proprietor and all other necessary parties, granting a licence in accordance with the order.

(3) No order shall be made under this section which would be at variance with any treaty, convention, arrangement or engagement applying to the United Kingdom and any convention country.

(4) An appeal shall lie from any order of the registrar under this section.

11 (1) The registrar may, upon a request made in the prescribed manner by the registered proprietor, cancel the registration of a design.

(2) At any time after a design has been registered any person interested may apply to the registrar for the cancellation of the registration of the design on the ground that the design was not, at the date of the registration thereof, new..., or on any other ground on which the registrar could have refused to register the design; and the registrar may make such order on the application as he thinks fit.

(3) At any time after a design has been registered, any person interested may apply to the registrar for the cancellation of the registration on the ground that—

(a) the design was at the time it was registered a corresponding design in relation to an artistic work in which copyright subsisted, and

(b) the right in the registered design has expired in accordance with section 8(4) of this Act (expiry of right in registered design on expiry of copyright in artistic work);

and the registrar may make such order on the application as he thinks fit.

(4) A cancellation under this section takes effect— (a) in the case of cancellation under subsection (1), from the date of the

registrar’s decision, (b) in the case of cancellation under subsection (2), from the date of registration, (c) in the case of cancellation under subsection (3), from the date on which the

right in the registered design expired, or, in any case, from such other date as the registrar may direct.

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(5) An appeal lies from any order of the registrar under this section.

11A (1) Where a report of the Monopolies and Mergers Commission has been laid before Parliament containing conclusions to the effect—

(a) on a monopoly reference, that a monopoly situation exists and facts found by the Commission operate or may be expected to operate against the public interest,

(c) on a competition reference, that a person was engaged in an anti-competitive practice which operated or may be expected to operate against the public interest, or

the appropriate Minister or Ministers may apply to the registrar to take action under this section.

(2) Before making an application the appropriate Minister or Ministers shall publish, in such manner as he or they think appropriate, a notice describing the nature of the proposed application and shall consider any representations which may be made within 30 days of such publication by persons whose interests appear to him or them to be affected.

(3) If on an application under this section it appears to the registrar that the matters specified in the Commission’s report as being those which in the Commission’s opinion operate, or operated or may be expected to operate, against the public interest include—

(a) conditions in licences granted in respect of a registered design by its proprietor restricting the use of the design by the licensee or the right of the proprietor to grant other licences, or

(b) a refusal by the proprietor of a registered design to grant licences on reasonable terms,

he may by order cancel or modify any such condition or may, instead or in addition, make an entry in the register to the effect that licences in respect of the design are to be available as of right.

(5) Where the terms of a licence are settled by the registrar, the licence has effect from the date on which the application to him was made.

(6) An appeal lies from any order of the registrar under this section.

(7) In this section “the appropriate Minister or Ministers” means the Minister or Ministers to whom the report of the Monopolies and Mergers Commission was made.

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11B (1) If in proceedings for infringement of the right in a registered design in respect of which a licence is available as of right under section 11A of this Act the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the registrar under that section—

(a) no injunction shall be granted against him, and (b) the amount recoverable against him by way of damages or on an account of

profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.

(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.

12 The provisions of the First Schedule to this Act shall have effect with respect to the use of registered designs for the services of the Crown and the rights of third parties in respect of such use.

International Arrangements

13 (1) His Majesty may, with a view to the fulfilment of a treaty, convention, arrangement or engagement, by Order in Council declare that any country specified in the Order is a convention country for the purposes of this Act:

Provided that a declaration may be made as aforesaid for the purposes either of all or of some only of the provisions of this Act, and a country in the case of which a declaration made for the purposes of some only of the provisions of this Act is in force shall be deemed to be a convention country for the purposes of those provisions only.

(2) His Majesty may by Order in Council direct that any of the Channel Islands, any colony,... shall be deemed to be a convention country for the purposes of all or any of the provisions of this Act; and an Order made under this subsection may direct that any such provisions shall have effect, in relation to the territory in question, subject to such conditions or limitations, if any, as may be specified in the Order.

(3) For the purposes of subsection (1) of this section, every colony, protectorate, territory subject to the authority or under the suzerainty of another country, and territory administered by another country... under the trusteeship system of the United Nations, shall be deemed to be a country in the case of which a declaration may be made under that subsection.

14 (1) An application for registration of a design in respect of which protection has been applied for in a convention country may be made in accordance with the provisions of this Act by the person by whom the application for protection was made or his personal representative or assignee:

Provided that no application shall be made by virtue of this section after the expiration of six months from the date of the application for protection in a

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convention country or, where more than one such application for protection has been made, from the date of the first application.

(2) Where an application for registration of a design is made by virtue of this section, the application shall be treated, for the purpose of determining whether that or any other design is new, as made on the date of the application for protection in the convention country or, if more than one such application was made, on the date of the first such application.

(3) Subsection (2) shall not be construed as excluding the power to give directions under section 3(4) of this Act in relation to an application made by virtue of this section.

(4) Where a person has applied for protection for a design by an application which— (a) in accordance with the terms of a treaty subsisting between two or more

convention countries, is equivalent to an application duly made in any one of those convention countries; or

(b) in accordance with the law of any convention country, is equivalent to an application duly made in that convention country,

he shall be deemed for the purposes of this section to have applied in that convention country.

15 (1) If the Secretary of State is satisfied that provision substantially equivalent to the provision to be made by or under this section has been or will be made under the law of any convention country, he may make rules empowering the registrar to extend the time for making application under subsection (1) of section 14 of this Act for registration of a design in respect of which protection has been applied for in that country in any case where the period specified in the proviso to that subsection expires during a period prescribed by the rules.

(2) Rules made under this section— (a) may, where any agreement or arrangement has been made between His

Majesty’s Government in the United Kingdom and the government of the convention country for the supply or mutual exchange of information or articles, provide, either generally or in any class of case specified in the rules, that an extension of time shall not be granted under this section unless the design has been communicated in accordance with the agreement or arrangement;

(b) may, either generally or in any class of case specified in the rules, fix the maximum extension which may be granted under this section;

(d) may empower the registrar to extend, in relation to an application made by virtue of this section, the time limited by or under the foregoing provisions of this Act for doing any act, subject to such conditions, if any, as may be imposed by or under the rules;

(e) may provide for securing that the rights conferred by registration on an application made by virtue of this section shall be subject to such restrictions or conditions as may be specified by or under the rules and in particular to restrictions and conditions for the protection of persons (including persons acting on behalf of His Majesty) who, otherwise than as the result of a communication made in accordance with such an agreement or arrangement as is mentioned in paragraph (a) of this subsection, and before the date of

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the application in question or such later date as may be allowed by the rules, may have imported or made articles to which the design is applied or may have made any application for registration of the design.

16 (1) Subject to the provisions of this section, the Secretary of State may make rules for securing that, where a design has been communicated in accordance with an agreement or arrangement made between His Majesty’s Government in the United Kingdom and the government of any other country for the supply or mutual exchange of information or articles,—

(a) an application for the registration of the design made by the person from whom the design was communicated or his personal representative or assignee shall not be prejudiced, and the registration of the design in pursuance of such an application shall not be invalidated, by reason only that the design has been communicated as aforesaid or that in consequence thereof—

(i) the design has been published or applied, or (ii) an application for registration of the design has been made by

any other person, or the design has been registered on such an application;

(b) any application for the registration of a design made in consequence of such a communication as aforesaid may be refused and any registration of a design made on such an application may be cancelled.

(2) Rules made under subsection (1) of this section may provide that the publication or application of a design, or the making of any application for registration thereof shall, in such circumstances and subject to such conditions or exceptions as may be prescribed by the rules, be presumed to have been in consequence of such a communication as is mentioned in that subsection.

(3) The powers of the Secretary of State under this section, so far as they are exercisable for the benefit of persons from whom designs have been communicated to His Majesty’s Government in the United Kingdom by the government of any other country, shall only be exercised if and to the extent that the Secretary of State is satisfied that substantially equivalent provision has been or will be made under the law of that country for the benefit of persons from whom designs have been communicated by His Majesty’s Government in the United Kingdom to the government of that country.

(4) References in the last foregoing subsection to the communication of a design to or by His Majesty’s Government or the government of any other country shall be construed as including references to the communication of the design by or to any person authorised in that behalf by the government in question.

Register of designs, etc.

17 (1) The registrar shall maintain the register of designs, in which shall be entered— (a) the names and addresses of proprietors of registered designs; (b) notices of assignments and of transmissions of registered designs; and (c) such other matters as may be prescribed or as the registrar may think fit.

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(2) No notice of any trust, whether express, implied or constructive, shall be entered in the register of designs, and the registrar shall not be affected by any such notice.

(3) The register need not be kept in documentary form.

(4) Subject to the provisions of this Act and to rules made by the Secretary of State under it, the public shall have a right to inspect the register at the Patent Office at all convenient times.

(5) Any person who applies for a certified copy of an entry in the register or a certified extract from the register shall be entitled to obtain such a copy or extract on payment of a fee prescribed in relation to certified copies and extracts; and rules made by the Secretary of State under this Act may provide that any person who applies for an uncertified copy or extract shall be entitled to such a copy or extract on payment of a fee prescribed in relation to uncertified copies and extracts.

(6) Applications under subsection (5) above or rules made by virtue of that subsection shall be made in such manner as may be prescribed.

(7) In relation to any portion of the register kept otherwise than in documentary form— (a) the right of inspection conferred by subsection (4) above is a right to inspect

the material on the register; and (b) the right to a copy or extract conferred by subsection (5) above or rules is

a right to a copy or extract in a form in which it can be taken away and in which it is visible and legible.

(8) Subject to subsection (11) below, the register shall be prima facie evidence of anything required or authorised to be entered in it and in Scotland shall be sufficient evidence of any such thing.

(9) A certificate purporting to be signed by the registrar and certifying that any entry which he is authorised by or under this Act to make has or has not been made, or that any other thing which he is so authorised to do has or has not been done, shall be prima facie evidence, and in Scotland shall be sufficient evidence, of the matters so certified.

(10) Each of the following— (a) a copy of an entry in the register or an extract from the register which is

supplied under subsection (5) above; (b) a copy or any representation, specimen or document kept in the Patent Office

or an extract from any such document, which purports to be a certified copy or certified extract shall, subject to subsection (11) below, be admitted in evidence without further proof and without production of any original; and in Scotland such evidence shall be sufficient evidence.

(11) In the application of this section to England and Wales nothing in it shall be taken as detracting from section 69 or 70 of the Police and Criminal Evidence Act 1984 or any provision made by virtue of either of them.

(12) In this section “certified copy” and “certified extract” means a copy and extract certified by the registrar and sealed with the seal of the Patent Office.

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18 (1) The registrar shall grant a certificate of registration in the prescribed form to the registered proprietor of a design when the design is registered.

(2) The registrar may, in a case where he is satisfied that the certificate of registration has been lost or destroyed, or in any other case in which he thinks it expedient, furnish one or more copies of the certificate.

19 (1) Where any person becomes entitled by assignment, transmission or operation of law to a registered design or to a share in a registered design, or becomes entitled as mortgagee, licensee or otherwise to any other interest in a registered design, he shall apply to the registrar in the prescribed manner for the registration of his title as proprietor or co-proprietor or, as the case may be, of notice of his interest, in the register of designs.

(2) Without prejudice to the provisions of the foregoing subsection, an application for the registration of the title of any person becoming entitled by assignment to a registered design or a share in a registered design, or becoming entitled by virtue of a mortgage, licence or other instrument to any other interest in a registered design, may be made in the prescribed manner by the assignor, mortgagor, licensor or other party to that instrument, as the case may be.

(3) Where application is made under this section for the registration of the title of any person, the registrar shall, upon proof of title to his satisfaction—

(a) where that person is entitled to a registered design or a share in a registered design, register him in the register of designs as proprietor or co-proprietor of the design, and enter in that register particulars of the instrument or event by which he derives title; or

(b) where that person is entitled to any other interest in the registered design, enter in that register notice of his interest, with particulars of the instrument (if any) creating it.

(3A) Where design right subsists in a registered design, the registrar shall not register an interest under subsection (3) unless he is satisfied that the person entitled to that interest is also entitled to a corresponding interest in the design right.

(4) Subject to any rights vested in any other person of which notice is entered in the register of designs, the person or persons registered as proprietor of a registered design shall have power to assign, grant licences under, or otherwise deal with the design, and to give effectual receipts for any consideration for any such assignment, licence or dealing.

Provided that any equities in respect of the design may be enforced in like manner as in respect of any other personal property.

(5) Except for the purposes of an application to rectify the register under the following provisions of this Act, a document in respect of which no entry has been made in the register of designs under subsection (3) of this section shall not be admitted in any court as evidence of the title of any person to a registered design or share of or interest in a registered design unless the court otherwise directs.

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20 (1) The court may, on the application of any person aggrieved, order the register of designs to be rectified by the making of any entry therein or the variation or deletion of any entry therein.

(2) In proceedings under this section the court may determine any question which it may be necessary or expedient to decide in connection with the rectification of the register.

(3) Notice of any application to the court under this section shall be given in the prescribed manner to the registrar, who shall be entitled to appear and be heard on the application, and shall appear if so directed by the court.

(4) Any order made by the court under this section shall direct that notice of the order shall be served on the registrar in the prescribed manner; and the registrar shall, on receipt of the notice, rectify the register accordingly.

(5) A rectification of the register under this section has effect as follows— (a) an entry made has effect from the date on which it should have been made, (b) an entry varied has effect as if it had originally been made in its varied form,

and (c) an entry deleted shall be deemed never to have had effect,

unless, in any case, the court directs otherwise.

21 (1) The registrar may, in accordance with the provisions of this section, correct any error in an application for the registration or in the representation of a design, or any error in the register of designs.

(2) A correction may be made in pursuance of this section either upon a request in writing made by any person interested and accompanied by the prescribed fee, or without such a request.

(3) Where the registrar proposes to make any such correction as aforesaid otherwise than in pursuance of a request made under this section, he shall give notice of the proposal to the registered proprietor or the applicant for registration of the design, as the case may be, and to any other person who appears to him to be concerned, and shall give them an opportunity to be heard before making the correction.

22 (1) Where a design has been registered under this Act, there shall be open to inspection at the Patent Office on and after the day on which the certificate of registration is issued—

(a) the representation or specimen of the design, and (b) any evidence filed in support of the applicant’s contention that the

appearance of an article is material (for the purposes of section 1(3) of this Act).

This subsection has effect subject to the following provisions of this section and to any rules made under section 5(2) of this Act.

(2) In the case of a design registered in respect of an article of any class prescribed for the purposes of this subsection, no representation, specimen or evidence filed in pursuance of the application shall, until the expiration of such period after the day on which the certificate of registration is issued as may be prescribed in relation to articles of that class, be open to inspection at the Patent Office except by the registered proprietor, a person authorised in writing by the registered proprietor, or a person authorised by the registrar or by the court:

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Provided that where the registrar proposes to refuse an application for the registration of any other design on the ground that it is the same as the first-mentioned design or differs from that design only in immaterial details or in features which are variants commonly used in the trade, the applicant shall be entitled to inspect the representation or specimen of the first-mentioned design filed in pursuance of the application for registration of that design.

(3) In the case of a design registered in respect of an article of any class prescribed for the purposes of the last foregoing subsection, the representation, specimen or evidence shall not, during the period prescribed as aforesaid, be inspected by any person by virtue of this section except in the presence of the registrar or of an officer acting under him; and except in the case of an inspection authorised by the proviso to that subsection, the person making the inspection shall not be entitled to take a copy of the representation, specimen or evidence or any part thereof.

(4) Where an application for the registration of a design has been abandoned or refused, neither the application for registration nor any representation, specimen or evidence filed in pursuance thereof shall at any time be open to inspection at the Patent Office or be published by the registrar.

23 On the request of a person furnishing such information as may enable the registrar to identify the design, and on payment of the prescribed fee, the registrar shall inform him—

(a) whether the design is registered and, if so, in respect of what articles, and (b) whether any extension of the period of the right in the registered design

has been granted, and shall state the date of registration and the name and address of the registered proprietor.

... ... ... ... ... ... ...

Legal proceedings and appeals

25 (1) If in any proceedings before the court the validity of the registration of a design is contested, and it is found by the court that the design is validly registered, the court may certify that the validity of the registration of the design was contested in those proceedings.

(2) Where any such certificate has been granted, then if in any subsequent proceedings before the court for infringement of the right in the registered design or for cancellation of the registration of the design, a final order or judgment is made or given in favour of the registered proprietor, he shall, unless the court otherwise directs, be entitled to his costs as between solicitor and client:

Provided that this subsection shall not apply to the costs of any appeal in any such proceedings as aforesaid.

26 (1) Where any person (whether entitled to or interested in a registered design or an application for registration of a design or not) by circulars, advertisements or otherwise threatens any other person with proceedings for infringement of the right

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in a registered design, any person aggrieved thereby may bring an action against him for any such relief as is mentioned in the next following subsection.

(2) Unless in any action brought by virtue of this section the defendant proves that the acts in respect of which proceedings were threatened constitute or, if done, would constitute, an infringement of the right in a registered design the registration of which is not shown by the plaintiff to be invalid, the plaintiff shall be entitled to the following relief, that is to say:—

(a) a declaration to the effect that the threats are unjustifiable; (b) an injunction against the continuance of the threats; and (c) such damages, if any, as he has sustained thereby.

(2A) Proceedings may not be brought under this section in respect of a threat to bring proceedings for an infringement alleged to consist of the making or importing of anything.

(3) For the avoidance of doubt it is hereby declared that a mere notification that a design is registered does not constitute a threat of proceedings within the meaning of this section.

27 (1) In this Act “the court” means— (a) in England and Wales, the High Court or any patents county court having

jurisdiction by virtue of an order under section 287 of the Copyright, Designs and Patents Act 1988,

(b) in Scotland, the Court of Session, and (c) in Northern Ireland, the High Court.

28 (1) Any appeal from the registrar under this Act shall lie to the Appeal Tribunal.

(2) The Appeal Tribunal shall consist of— (a) one or more judges of the High Court nominated by the Lord Chancellor, and (b) one judge of the Court of Session nominated by the Lord President of that

Court.

(2A) At any time when it consists of two or more judges, the jurisdiction of the Appeal Tribunal—

(a) where in the case of any particular appeal the senior of those judges so directs, shall be exercised in relation to that appeal by both of the judges, or (if there are more than two) by two of them, sitting together, and

(b) in relation to any appeal in respect of which no such direction is given, may be exercised by any one of the judges;

and, in the exercise of that jurisdiction, different appeals may be heard at the same time by different judges.

(3) The expenses of the Appeal Tribunal shall be defrayed and the fees to be taken therein may be fixed as if the Tribunal were a court of the High Court.

(4) The Appeal Tribunal may examine witnesses on oath and administer oaths for that purpose.

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(5) Upon any appeal under this Act the Appeal Tribunal may by order award to any party such costs or expenses as the Tribunal may consider reasonable and direct how and by what parties the costs or expenses are to be paid; and any such order may be enforced—

(a) in England and Wales or Northern Ireland, in the same way as an order of the High Court;

(b) in Scotland, in the same way as a decree for expenses granted by the Court of Session.

... ... ... ... ... ... ...

(7) Upon any appeal under this Act the Appeal Tribunal may exercise any power which could have been exercised by the registrar in the proceeding from which the appeal is brought.

(8) Subject to the foregoing provisions of this section the Appeal Tribunal may make rules for regulating all matters relating to proceedings before it under this Act, including right of audience.

(8A) At any time when the Appeal Tribunal consists of two or more judges, the power to make rules under subsection (8) of this section shall be exercisable by the senior of those judges:

Provided that another of those judges may exercise that power if it appears to him that it is necessary for rules to be made and that the judge (or, if more than one, each of the judges) senior to him is for the time being prevented by illness, absence or otherwise from making them.

(9) An appeal to the Appeal Tribunal under this Act shall not be deemed to be a proceeding in the High Court.

(10) In this section “the High Court” means the High Court in England and Wales; and for the purposes of this section the seniority of judges shall be reckoned by reference to the dates on which they were appointed judges of that court or the Court of Session.

Powers and duties of Registrar

29 Without prejudice to any provisions of this Act requiring the registrar to hear any party to proceedings thereunder, or to give to any such party an opportunity to be heard, rules made by the Secretary of State under this Act shall require the registrar to give to any applicant for registration of a design an opportunity to be heard before exercising adversely to the applicant any discretion vested in the registrar by or under this Act.

30 (1) Rules made by the Secretary of State under this Act may make provision empowering the registrar, in anyproceedings before him under this Act—

(a) to award any party such costs as he may consider reasonable, and (b) to direct how and by what parties they are to be paid.

(2) Any such order of the registrar may be enforced— (a) in England and Wales or Northern Ireland, in the same way as an order of

the High Court;

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(b) in Scotland, in the same way as a decree for expenses granted by the Court of Session.

(3) Rules made by the Secretary of State under this Act may make provision empowering the registrar to require a person, in such cases as may be prescribed, to give security for the costs of—

(a) an application for cancellation of the registration of a design, (b) an application for the grant of a licence in respect of a registered design, or (c) an appeal from any decision of the registrar under this Act,

and enabling the application or appeal to be treated as abandoned in default of such security being given.

31 Rules made by the Secretary of State under this Act may make provision— (a) as to the giving of evidence in proceedings before the registrar under this

Act by affidavit or statutory declaration; (b) conferring on the registrar the powers of an official referee of the [F740

Senior Courts] as regards the examination of witnesses on oath and the discovery and production of documents; and

(c) applying in relation to the attendance of witnesses in proceedings before the registrar the rules applicable to the attendance of witnesses in proceedings before such a referee.

... ... ... ... ... ... ...

Annotations:

Amendments (Textual) F740 Sch. 4 para. 31(b): words substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 59, 148,

Sch. 11 para. 4; S.I. 2009/1604, art. 2

Offences

33 (1) If any person fails to comply with any direction given under section five of this Act or makes or causes to be made an application for the registration of a design in contravention of that section, he shall be guilty of an offence and liable—

(a) on conviction on indictment to imprisonment for a term not exceeding two years or a fine, or both;

(b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both.

... ... ... ... ... ... ...

34 If any person makes or causes to be made a false entry in the register of designs, or a writing falsely purporting to be a copy of an entry in that register, or produces or tenders or causes to be produced or tendered in evidence any such writing, knowing the entry or writing to be false, he shall be guilty of an offence and liable—

(a) on conviction on indictment to imprisonment for a term not exceeding two years or a fine, or both;

(b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both.

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35 (1) If any person falsely represents that a design applied to any article sold by him is registered in respect of that article, he shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale; and for the purposes of this provision a person who sells an article having stamped, engraved or impressed thereon or otherwise applied thereto the word “registered”, or any other word expressing or implying that the design applied to the article is registered, shall be deemed to represent that the design applied to the article is registered in respect of that article.

(2) If any person, after the right in a registered design has expired, marks any article to which the design has been applied with the word “registered”, or any word or words implying that there is a subsisting right in the design under this Act, or causes any such article to be so marked, he shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.

35A (1) Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) In relation to a body corporate whose affairs are managed by its members “director” means a member of the body corporate.

Rules, etc.

36 (1) Subject to the provisions of this Act, the Secretary of State may make such rules as he thinks expedient for regulating the business of the Patent Office in relation to designs and for regulating all matters by this Act placed under the direction or control of the registrar or the Secretary of State.

(1A) Rules may, in particular, make provision— (a) prescribing the form of applications for registration of designs and of any

representations or specimens of designs or other documents which may be filed at the Patent Office, and requiring copies to be furnished of any such representations, specimens or documents;

(d) regulating the keeping of the register of designs; (e) authorising the publication and sale of copies of representations of designs

and other documents in the Patent Office; (f) prescribing anything authorised or required by this Act to be prescribed by

rules.

(2) Rules made under this section may provide for the establishment of branch offices for designs and may authorise any document or thing required by or under this Act

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to be filed or done at the Patent Office to be filed or done at the branch office at Manchester or any other branch office established in pursuance of the rules.

37 (1) ... ... ... ... ... ... ...

(2) Any rules made by the Secretary of State in pursuance of section 15 or section 16 of this Act, and any order made, direction given, or other action taken under the rules by the registrar, may be made, given or taken so as to have effect as respects things done or omitted to be done on or after such date, whether before or after the coming into operation of the rules or of this Act, as may be specified in the rules.

(3) Any power to make rules conferred by this Act on the Secretary of State or on the Appeal Tribunal shall be exercisable by statutory instrument; and the Statutory Instruments Act 1946 shall apply to a statutory instrument containing rules made by the Appeal Tribunal in like manner as if the rules had been made by a Minister of the Crown.

(4) Any statutory instrument containing rules made by the Secretary of State under this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) Any Order in Council made under this Act may be revoked or varied by a subsequent Order in Council.

... ... ... ... ... ... ...

Supplemental

39 (1) Rules made by the Secretary of State under this Act may specify the hour at which the Patent Office shall be deemed to be closed on any day for purposes of the transaction by the public of business under this Act or of any class of such business, and may specify days as excluded days for any such purposes.

(2) Any business done under this Act on any day after the hour specified as aforesaid in relation to business of that class, or on a day which is an excluded day in relation to business of that class, shall be deemed to have been done on the next following day not being an excluded day; and where the time for doing anything under this Act expires on an excluded day, that time shall be extended to the next following day not being an excluded day.

40 There shall be paid in respect of the registration of designs and applications therefor, and in respect of other matters relating to designs arising under this Act, such fees as may be prescribed by rules made by the Secretary of State with the consent of the Treasury.

41 Any notice required or authorised to be given by or under this Act, and any application or other document so authorised or required to be made or filed, may be given, made or filed by post.

42 The Comptroller-General of Patents, Designs and Trade Marks shall, in his annual report with respect to the execution of the Patents Act 1977, include a report with

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respect to the execution of this Act as if it formed a part of or was included in that Act.

43 (1) Nothing in this Act shall be construed as authorising or requiring the registrar to register a design the use of which would, in his opinion, be contrary to law or morality.

(2) Nothing in this Act shall affect the right of the Crown or of any person deriving title directly or indirectly from the Crown to sell or use articles forfeited under the laws relating to customs or excise.

44 (1) In this Act, except where the context otherwise requires, the following expressions have the meanings hereby respectively assigned by them, that is to say—

“Appeal Tribunal” means the Appeal Tribunal constituted and acting in accordance with section 28 of this Act as amended by the Administration of Justice Act 1969;

“article” means any article of manufacture and includes any part of an article if that part is made and sold separately;

“artistic work” has the same meaning as in Part I of the Copyright, Designs and Patents Act 1988;

“assignee” includes the personal representative of a deceased assignee, and references to the assignee of any person include references to the assignee of the personal representative or assignee of that person;

“author”, in relation to a design, has the meaning given by section 2(3) and (4);

... ... ... ... ... ... ... “corresponding design”, in relation to an artistic work, means a design

which if applied to an article would produce something which would be treated for the purposes of Part I of the Copyright, Designs and Patents Act 1988 as a copy of that work;

“the court” shall be construed in accordance with section 27 of this Act; “design” has the meaning assigned to it by section 1(1) of this Act; “employee”, “employment” and “employer” refer to employment under

a contract of service or of apprenticeship; ... ... ... ... ... ... ... “prescribed” means prescribed by rules made by the Secretary of State

under this Act; “proprietor” has the meaning assigned to it by section two of this Act; “registered proprietor” means the person or persons for the time being

entered in the register of designs as proprietor of the design; “registrar” means the Comptroller-General of Patents Designs and Trade

Marks; “set of articles” means a number of articles of the same general character

ordinarily on sale or intended to be used together, to each of which the same design, or the same design with modifications or variations not sufficient to alter the character or substantially to affect the identity thereof, is applied.

(2) Any reference in this Act to an article in respect of which a design is registered shall, in the case of a design registered in respect of a set of articles, be construed as a reference to any article of that set.

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(3) Any question arising under this Act whether a number of articles constitute a set of articles shall be determined by the registrar; and notwithstanding anything in this Act any determination of the registrar under this subsection shall be final.

(4) For the purposes of subsection (1) of section 14 and of section 16 of this Act, the expression “personal representative”, in relation to a deceased person, includes the legal representative of the deceased appointed in any country outside the United Kingdom.

45 In the application of this Act to Scotland—

... ... ... ... ... ... ... (3) The expression “injunction” means “interdict”; the expression

“arbitrator”means “arbiter”; the expression “plaintiff” means “pursuer”; the expression “defendant”

means “defender”.

46 In the application of this Act to Northern Ireland—

... ... ... ... ... ... ...

(3) References to enactments include enactments comprised in Northern Ireland legislation:

(3A) References to the Crown include the Crown in right of Her Majesty’s Government in Northern Ireland:

(4) References to a government department shall be construed as including references to a Northern Ireland department, and in relation to a Northern Ireland department references to the Treasury shall be construed as references to the Department of Finance and Personnel.

... ... ... ... ... ... ...

47 This Act extends to the Isle of Man, subject to any modifications contained in an Order made by Her Majesty in Council, and accordingly, subject to any such Order, references in this Act to the United Kingdom shall be construed as including the Isle of Man.

47A (1) For the purposes of this Act the territorial waters of the United Kingdom shall be treated as part of the United Kingdom.

(2) This Act applies to things done in the United Kingdom sector of the continental shelf on a structure or vessel which is present there for purposes directly connected with theexploration of the sea bed or subsoil or the exploitation of their natural resources as it applies to things done in the United Kingdom.

(3) The United Kingdom sector of the continental shelf means the areas designated by order under section 1(7) of the Continental Shelf Act 1964.

48 (1) ... ... ... ... ... ... ...

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(2) Subject to the provisions of this section, any Order in Council, rule, order, requirement, certificate, notice, decision, direction, authorisation, consent, application, request or thing made, issued, given or done under any enactment repealed by this Act shall, if in force at the commencement of this Act, and so far as it could have been made, issued, given or done under this Act, continue in force and have effect as if made, issued, given or done under the corresponding enactment of this Act.

(3) Any register kept under the Patents and Designs Act 1907 shall be deemed to form part of the corresponding register under this Act.

(4) Any design registered before the commencement of this Act shall be deemed to be registered under this Act in respect of articles of the class in which it is registered.

(5) Where, in relation to any design, the time for giving notice to the registrar under section 59 of the Patents and Designs Act 1907 expired before the commencement of this Act and the notice was not given, subsection (2) of section 6 of this Act shall not apply in relation to that design or any registration of that design.

(6) Any document referring to any enactment repealed by this Act shall be construed as referring to the corresponding enactment of this Act.

(7) Nothing in the foregoing provisions of this section shall be taken as prejudicing the operation of section 38 of the Interpretation Act 1889 (which relates to the effect of repeals).

49 (1) This Act may be cited as the Registered Designs Act 1949.

(2) This Act shall come into operation on the first day of January, nineteen hundred and fifty, immediately after the coming into operation of the Patents and Designs Act 1949.

FIRST SCHEDULE

Provisions as to the Use of Registered Designs for the Services of the Crown and as to the Rights of Third Parties in Respect of such Use

Use of registered designs for services of the Crown 1 (1) Notwithstanding anything in this Act, any Government department, and any person

authorised in writing by a Government department, may use any registered design for the services of the Crown in accordance with the following provisions of this paragraph.

(2) If and so far as the design has before the date of registration thereof been duly recorded by or applied by or on behalf of a Government department otherwise than in consequence of the communication of the design directly or indirectly by the registered proprietor or any person from whom he derives title, any use of the design by virtue of this paragraph may be made free of any royalty or other payment to the registered proprietor.

(3) If and so far as the design has not been so recorded or applied as aforesaid, any use of the design made by virtue of this paragraph at any time after the date of registration thereof, or in consequence of any such communication as aforesaid, shall be made

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upon such terms as may be agreed upon, either before or after the use, between the Government department and the registered proprietor with the approval of the Treasury, or as may in default of agreement be determined by the court on a reference under paragraph 3 of this Schedule.

(4) The authority of a Government department in respect of a design may be given under this paragraph either before or after the design is registered and either before or after the acts in respect of which the authority is given are done, and may be given to any person whether or not he is authorised directly or indirectly by the registered proprietor to use the design.

(5) Where any use of a design is made by or with the authority of a Government department under this paragraph, then, unless it appears to the department that it would be contrary to the public interest so to do, the department shall notify the registered proprietor as soon as practicable after the use is begun, and furnish him with such information as to the extent of the use as he may from time to time require.

(6) For the purposes of this and the next following paragraph “the services of the Crown” shall be deemed to include—

(a) the supply to the government of any country outside the United Kingdom, in pursuance of an agreement or arrangement between Her Majesty’s Government in the United Kingdom and the government of that country, of articles required—

(i) for the defence of that country; or (ii) for the defence of any other country whose government is party to

any agreement or arrangement with Her Majesty’s said Government in respect of defence matters;

(b) the supply to the United Nations, or the government of any country belonging to that organisation, in pursuance of an agreement or arrangement between Her Majesty’s Government and that organisation or government, of articles required for any armed forces operating in pursuance of a resolution of that organisation or any organ of that organisation;

and the power of a Government department or a person authorised by a Government department under this paragraph to use a design shall include power to sell to any such government or to the said organisation any articles the supply of which is authorised by this sub-paragraph, and to sell to any person any articles made in the exercise of the powers conferred by this paragraph which are no longer required for the purpose for which they were made.

(7) The purchaser of any articles sold in the exercise of powers conferred by this paragraph, and any person claiming through him, shall have power to deal with them in the same manner as if the rights in the registered design were held on behalf of His Majesty.

Rights of third parties in respect of Crown use 2 (1) In relation to any use of a registered design, or a design in respect of which an

application for registration is pending, made for the services of the Crown— (a) by a Government department or a person authorised by a Government

department under the last foregoing paragraph; or (b) by the registered proprietor or applicant for registration to the order of a

Government department,

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the provisions of any licence, assignment or agreement made, whether before or after the commencement of this Act, between the registered proprietor or applicant for registration or any person who derives title from him or from whom he derives title and any person other than a Government department shall be of no effect so far as those provisions restrict or regulate the use of the design, or any model, document or information relating thereto, or provide for the making of payments in respect of any such use, or calculated by reference thereto; and the reproduction or publication of any model or document in connection with the said use shall not be deemed to be an infringement of any copyright or design right subsisting in the model or document.

(2) Where an exclusive licence granted otherwise than for royalties or other benefits determined by reference to the use of the design is in force under the registered design then—

(a) in relation to any use of the design which, but for the provisions of this and the last foregoing paragraph, would constitute an infringement of the rights of the licensee, sub-paragraph (3) of the last foregoing paragraph shall have effect as if for the reference to the registered proprietor there were substituted a reference to the licensee; and

(b) in relation to any use of the design by the licensee by virtue of an authority given under the last foregoing paragraph, that paragraph shall have effect as if the said sub-paragraph (3) were omitted.

(3) Subject to the provisions of the last foregoing sub-paragraph, where the registered design or the right to apply for or obtain registration of the design has been assigned to the registered proprietor in consideration of royalties or other benefits determined by reference to the use of the design, then—

(a) in relation to any use of the design by virtue of paragraph 1 of this Schedule, sub-paragraph (3) of that paragraph shall have effect as if the reference to the registered proprietor included a reference to the assignor, and any sum payable by virtue of that sub-paragraph shall be divided between the registered proprietor and the assignor in such proportion as may be agreed upon between them or as may in default of agreement be determined by the court on a reference under the next following paragraph; and

(b) in relation to any use of the design made for the services of the Crown by the registered proprietor to the order of a Government department, sub- paragraph (3) of paragraph 1 of this Schedule shall have effect as if that use were made by virtue of an authority given under that paragraph.

(4) Where, under sub-paragraph (3) of paragraph 1 of this Schedule, payments are required to be made by a Government department to a registered proprietor in respect of any use of a design, any person being the holder of an exclusive licence under the registered design (not being such a licence as is mentioned in sub-paragraph (2) of this paragraph) authorising him to make that use of the design shall be entitled to recover from the registered proprietor such part (if any) of those payments as may be agreed upon between that person and the registered proprietor, or as may in default of agreement be determined by the court under the next following paragraph to be just having regard to any expenditure incurred by that person—

(a) in developing the said design; or (b) in making payments to the registered proprietor, other than royalties or other

payments determined by reference to the use of the design, in consideration of the licence;

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and if, at any time before the amount of any such payment has been agreed upon between the Government department and the registered proprietor, that person gives notice in writing of his interest to the department, any agreement as to the amount of that payment shall be of no effect unless it is made with his consent.

(5) In this paragraph “exclusive licence” means a licence from a registered proprietor which confers on the licensee, or on the licensee and persons authorised by him, to the exclusion of all other persons (including the registered proprietor), any right in respect of the registered design.

Compensation for loss of profit 2A (1) Where Crown use is made of a registered design, the government department

concerned shall pay— (a) to the registered proprietor, or (b) if there is an exclusive licence in force in respect of the design, to the

exclusive licensee, compensation for any loss resulting from his not being awarded a contract to supply the articles to which the design is applied.

(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was under-used.

(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles to which the design is applied otherwise than for the services of the Crown.

(6) In this paragraph— “Crown use”, in relation to a design, means the doing of anything by virtue

of paragraph 1 which would otherwise be an infringement of the right in the design; and

“the government department concerned”, in relation to such use, means the government department by whom or on whose authority the act was done.

Reference of disputes as to Crown use 3 (1) Any dispute as to—

(a) the exercise by a Government department, or a person authorised by a Government department, of the powers conferred by paragraph 1 of this Schedule,

(b) terms for the use of a design for the services of the Crown under that paragraph,

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(d) the right of any person to receive a payment under paragraph 2A, may be referred to the court by either party to the dispute.

(2) In any proceedings under this paragraph to which a Government department are a party, the department may—

(a) if the registered proprietor is a party to the proceedings, apply for cancellation of the registration of the design upon any ground upon which the registration of a design may be cancelled on an application to the court under section twenty of this Act;

(b) in any case, put in issue the validity of the registration of the design without applying for its cancellation.

(3) If in such proceedings as aforesaid any question arises whether a design has been recorded or applied as mentioned in paragraph 1 of this Schedule, and the disclosure of any document recording the design, or of any evidence of the application thereof, would in the opinion of the department be prejudicial to the public interest, the disclosure may be made confidentially to counsel for the other party or to an independent expert mutually agreed upon.

(4) In determining under this paragraph any dispute between a Government department and any person as to terms for the use of a design for the services of the Crown, the court shall have regard to any benefit or compensation which that person or any person from whom he derives title may have received, or may be entitled to receive, directly or indirectly from any Government department in respect of the design in question.

(5) In any proceedings under this paragraph the court may at any time order the whole proceedings or any question or issue of fact arising therein to be referred to a special or official referee or an arbitrator on such terms as the court may direct; and references to the court in the foregoing provisions of this paragraph shall be construed accordingly.

Special provisions as to Crown use during emergency 4 (1) During any period of emergency within the meaning of this paragraph, the powers

exercisable in relation to a design by a Government department, or a person authorised by a Government department under paragraph 1 of this Schedule shall include power to use the design for any purpose which appears to the department necessary or expedient—

(a) for the efficient prosecution of any war in which His Majesty may be engaged;

(b) for the maintenance of supplies and services essential to the life of the community;

(d) for promoting the productivity of industry, commerce and agriculture; (e) for fostering and directing exports and reducing imports, or imports of any

classes, from all or any countries and for redressing the balance of trade; (f) generally for ensuring that the whole resources of the community are

available for use, and are used, in a manner best calculated to serve the interests of the community; or

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(g) for assisting the relief of suffering and the restoration and distribution of essential supplies and services in any part of His Majesty’s dominions or any foreign countries that are in grave distress as the result of war;

and any reference in this Schedule to the services of the Crown shall be construed as including a reference to the purposes aforesaid.

(2) In this paragraph the expression “period of emergency” means a period beginning on such date as may be declared by Order in Council to be the commencement, and ending on such date as may be so declared to be the termination, of a period of emergency for the purposes of this paragraph.

(3) No Order in Council under this paragraph shall be submitted to Her Majesty unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

... ... ... ... ... ... ...

SCHEDULE 5 Section 295.

PATENTS: MISCELLANEOUS AMENDMENTS

Withdrawal of application before publication of specification 1 In section 13(2) of the M75Patents Act 1949 (duty of comptroller to advertise

acceptance of and publish complete specification) after the word “and”, in the first place where it occurs, insert “, unless the application is withdrawn,”.

Annotations:

Marginal Citations M75 1949 c. 87.

Correction of clerical errors 2 (1) In section 15 of the M76Patents Act 1977 (filing of application), after subsection (3)

insert—

“(3A) Nothing in subsection (2) or (3) above shall be construed as affecting the power of the comptroller under section 117(1) below to correct errors or mistakes with respect to the filing of drawings.”.

(2) The above amendment applies only in relation to applications filed after the commencement of this paragraph.

Annotations:

Marginal Citations M76 1977 c. 37.

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Supplementary searches 3 (1) Section 17 of the Patents Act 1977 (preliminary examination and search) is amended

as follows.

(2) In subsection (7) (supplementary searches) for “subsection (4) above” substitute “subsections (4) and (5) above” and for “it applies” substitute “they apply”.

(3) After that subsection add—

“(8) A reference for a supplementary search in consequence of— (a) an amendment of the application made by the applicant under

section 18(3) or 19(1) below, or (b) a correction of the application, or of a document filed in connection

with the application, under section 117 below, shall be made only on payment of the prescribed fee, unless the comptroller directs otherwise.”.

4 In section 18 of the Patents Act 1977 (substantive examination and grant or refusal of patent), after subsection (1) insert—

“(1A) If the examiner forms the view that a supplementary search under section 17 above is required for which a fee is payable, he shall inform the comptroller, who may decide that the substantive examination should not proceed until the fee is paid; and if he so decides, then unless within such period as he may allow—

(a) the fee is paid, or (b) the application is amended so as to render the supplementary search

unnecessary, he may refuse the application.”.

5 In section 130(1) of the Patents Act 1977 (interpretation), in the definition of “search fee”, for “section 17 above” substitute “section 17(1) above”.

Application for restoration of lapsed patent 6 (1) Section 28 of the Patents Act 1977 (restoration of lapsed patents) is amended as

follows.

(2) For subsection (1) (application for restoration within period of one year) substitute—

“(1) Where a patent has ceased to have effect by reason of a failure to pay any renewal fee, an application for the restoration of the patent may be made to the comptroller within the prescribed period.

(1A) Rules prescribing that period may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient.”.

(3) After subsection (2) insert—

“(2A) Notice of the application shall be published by the comptroller in the prescribed manner.”.

(4) In subsection (3), omit paragraph (b) (requirement that failure to renew is due to circumstances beyond proprietor’s control) and the word “and” preceding it.

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This amendment does not apply to a patent which has ceased to have effect in accordance with section 25(3) of the M77Patents Act 1977 (failure to renew within prescribed period) and in respect of which the period referred to in subsection (4) of that section (six months’ period of grace for renewal) has expired before commencement.

(5) Omit subsections (5) to (9) (effect of order for restoration).

Annotations:

Marginal Citations M77 1977 c. 37.

7 After that section insert—

“28A Effect of order for restoration of patent.

(1) The effect of an order for the restoration of a patent is as follows.

(2) Anything done under or in relation to the patent during the period between expiry and restoration shall be treated as valid.

(3) Anything done during that period which would have constituted an infringement if the patent had not expired shall be treated as an infringement —

(a) if done at a time when it was possible for the patent to be renewed under section 25(4), or

(b) if it was a continuation or repetition of an earlier infringing act.

(4) If after it was no longer possible for the patent to be so renewed, and before publication of notice of the application for restoration, a person—

(a) began in good faith to do an act which would have constituted an infringement of the patent if it had not expired, or

(b) made in good faith effective and serious preparations to do such an act,

he has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the restoration of the patent; but this right does not extend to granting a licence to another person to do the act.

(5) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (4) may—

(a) authorise the doing of that act by any partners of his for the time being in that business, and

(6) Where a product is disposed of to another in exercise of the rights conferred by subsection (4) or (5), that other and any person claiming through him may deal with the product in the same way as if it had been disposed of by the registered proprietor of the patent.

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(7) The above provisions apply in relation to the use of a patent for the services of the Crown as they apply in relation to infringement of the patent.”.

8 In consequence of the above amendments— (a) in section 60(6)(b) of the M78Patents Act 1977, for “section 28(6)” substitute

“section 28A(4) or (5)”; and (b) in sections 77(5), 78(6) and 80(4) of that Act, for the words from

“section 28(6)” to the end substitute “section 28A(4) and (5) above, and subsections (6) and (7) of that section shall apply accordingly.”.

Annotations:

Marginal Citations M78 1977 c. 37.

Determination of right to patent after grant 9 (1) Section 37 of the Patents Act 1977 (determination of right to patent after grant) is

amended as follows.

(2) For subsection (1) substitute—

“(1) After a patent has been granted for an invention any person having or claiming a proprietary interest in or under the patent may refer to the comptroller the question—

(a) who is or are the true proprietor or proprietors of the patent, (b) whether the patent should have been granted to the person or persons

to whom it was granted, or (c) whether any right in or under the patent should be transferred or

granted to any other person or persons; and the comptroller shall determine the question and make such order as he thinks fit to give effect to the determination.”.

(3) Substitute “this section”— (a) in subsections (4) and (7) for “subsection (1)(a) above”, and (b) in subsection (8) for “subsection (1) above”.

10 In section 74(6) (meaning of “entitlement proceedings”), for “section 37(1)(a) above” substitute “section 37(1) above”.

Employees’ inventions 11 (1) In section 39 of the Patents Act 1977 (right to employees’ inventions), after

subsection (2) add—

“(3) Where by virtue of this section an invention belongs, as between him and his employer, to an employee, nothing done—

(a) by or on behalf of the employee or any person claiming under him for the purposes of pursuing an application for a patent, or

(b) by any person for the purpose of performing or working the invention,

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shall be taken to infringe any copyright or design right to which, as between him and his employer, his employer is entitled in any model or document relating to the invention.”.

(2) In section 43 of the M79Patents Act 1977 (supplementary provisions with respect to employees’ inventions), in subsection (4) (references to patents to include other forms of protection, whether in UK or elsewhere) for “in sections 40 to 42” substitute “in sections 39 to 42.”.

Annotations:

Marginal Citations M79 1977 c. 37.

Undertaking to take licence in infringement proceedings 12 (1) Section 46 of the Patents Act 1977 (licences of right) is amended as follows.

(2) In subsection (3)(c) (undertaking to take licence in infringement proceedings) after the words “(otherwise than by the importation of any article” insert “from a country which is not a member State of the European Economic Community”.

(3) After subsection (3) insert—

“(3A) An undertaking under subsection (3)(c) above may be given at any time before final order in the proceedings, without any admission of liability.”.

Power of comptroller on grant of compulsory licence 13 In section 49 of the Patents Act 1977 (supplementary provisions with respect to

compulsory licences), omit subsection (3) (power to order that licence has effect to revoke existing licences and deprive proprietor of power to work invention or grant licences).

Powers exercisable in consequence of report of Monopolies and Mergers Commission 14 For section 51 of the Patents Act 1977 (licences of right: application by Crown in

consequence of report of Monopolies and Mergers Commission) substitute—

“51 Powers exercisable in consequence of report of Monopolies and Mergers Commission.

(1) Where a report of the Monopolies and Mergers Commission has been laid before Parliament containing conclusions to the effect—

(a) on a monopoly reference, that a monopoly situation exists and facts found by the Commission operate or may be expected to operate against the public interest,

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(c) on a competition reference, that a person was engaged in an anti- competitive practice which operated or may be expected to operate against the public interest, or

the appropriate Minister or Ministers may apply to the comptroller to take action under this section.

(3) If on an application under this section it appears to the comptroller that the matters specified in the Commission’s report as being those which in the Commission’s opinion operate, or operated or may be expected to operate, against the public interest include—

(a) conditions in licences granted under a patent by its proprietor restricting the use of the invention by the licensee or the right of the proprietor to grant other licences, or

(b) a refusal by the proprietor of a patent to grant licences on reasonable terms

he may by order cancel or modify any such condition or may, instead or in addition, make an entry in the register to the effect that licences under the patent are to be available as of right.

(4) In this section “the appropriate Minister or Ministers” means the Minister or Ministers to whom the report of the Commission was made.”.

Compulsory licensing: reliance on statements in competition report 15 In section 53(2) of the M80Patents Act 1977 (compulsory licensing: reliance on

statements in reports of Monopolies and Mergers Commission)— (a) for “application made in relation to a patent under sections 48 to 51 above”

substitute “application made under section 48 above in respect of a patent”; and

(b) after “Part VIII of the Fair Trading Act 1973” insert “or section 17 of the Competition Act 1980”.

Annotations:

Marginal Citations M80 1977 c. 37.

Crown use: compensation for loss of profit 16 (1) In the Patents Act 1977, after section 57 insert—

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“57A Compensation for loss of profit.

(1) Where use is made of an invention for the services of the Crown, the government department concerned shall pay—

(a) to the proprietor of the patent, or (b) if there is an exclusive licence in force in respect of the patent, to

the exclusive licensee, compensation for any loss resulting from his not being awarded a contract to supply the patented product or, as the case may be, to perform the patented process or supply a thing made by means of the patented process.

(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing or other capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing or other capacity was under-used.

(4) No compensation is payable in respect of any failure to secure contracts to supply the patented product or, as the case may be, to perform the patented process or supply a thing made by means of the patented process, otherwise than for the services of the Crown.

(5) The amount payable shall, if not agreed between the proprietor or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under section 58, and is in addition to any amount payable under section 55 or 57.

(6) In this section “the government department concerned”, in relation to any use of an invention for the services of the Crown, means the government department by whom or on whose authority the use was made.

(7) In the application of this section to Northern Ireland, the reference in subsection (5) above to the Treasury shall, where the government department concerned is a department of the Government of Northern Ireland, be construed as a reference to the Department of Finance and Personnel.”.

(2) In section 58 of the M81Patents Act 1977 (reference of disputes as to Crown use), for subsection (1) substitute—

“(1) Any dispute as to— (a) the exercise by a government department, or a person authorised by

a government department, of the powers conferred by section 55 above,

(b) terms for the use of an invention for the services of the Crown under that section,

(d) the right of any person to receive a payment under section 57A, may be referred to the court by either party to the dispute after a patent has been granted for the invention.”;

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and in subsection (4) for “under this section” substitute “under subsection (1)(a), (b) or (c) above”.

(3) In section 58(11) of the Patents Act 1977 (exclusion of right to compensation for Crown use if relevant transaction, instrument or event not registered), after “section 57(3) above)” insert “, or to any compensation under section 57A above,”.

(4) The above amendments apply in relation to any use of an invention for the services of the Crown after the commencement of this section, even if the terms for such use were settled before commencement.

Annotations:

Marginal Citations M81 1977 c. 37.

Right to continue use begun before priority date 17 For section 64 of the Patents Act 1977 (right to continue use begun before priority

date) substitute—

“64 Right to continue use begun before priority date.

(1) Where a patent is granted for an invention, a person who in the United Kingdom before the priority date of the invention—

(a) does in good faith an act which would constitute an infringement of the patent if it were in force, or

(b) makes in good faith effective and serious preparations to do such an act,

has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the grant of the patent; but this right does not extend to granting a licence to another person to do the act.

(2) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (1) may—

(a) authorise the doing of that act by any partners of his for the time being in that business, and

(3) Where a product is disposed of to another in exercise of the rights conferred by subsection (1) or (2), that other and any person claiming through him may deal with the product in the same way as if it had been disposed of by the registered proprietor of the patent.”.

Revocation on grounds of grant to wrong person 18 In section 72(1) of the M82Patents Act 1977 (grounds for revocation of patent), for

paragraph (b) substitute—

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“(b) that the patent was granted to a person who was not entitled to be granted that patent;”.

Annotations:

Marginal Citations M82 1977 c. 37.

Revocation where two patents granted for same invention 19 In section 73 of the Patents Act 1977 (revocation on initiative of comptroller), for

subsections (2) and (3) (revocation of patent where European patent (UK) granted in respect of same invention) substitute—

“(2) If it appears to the comptroller that a patent under this Act and a European patent (UK) have been granted for the same invention having the same priority date, and that the applications for the patents were filed by the same applicant or his successor in title, he shall give the proprietor of the patent under this Act an opportunity of making observations and of amending the specification of the patent, and if the proprietor fails to satisfy the comptroller that there are not two patents in respect of the same invention, or to amend the specification so as to prevent there being two patents in respect of the same invention, the comptroller shall revoke the patent.

(3) The comptroller shall not take action under subsection (2) above before— (a) the end of the period for filing an opposition to the European patent

(UK) under the European Patent Convention, or (b) if later, the date on which opposition proceedings are finally

disposed of; and he shall not then take any action if the decision is not to maintain the European patent or if it is amended so that there are not two patents in respect of the same invention.

(4) The comptroller shall not take action under subsection (2) above if the European patent (UK) has been surrendered under section 29(1) above before the date on which by virtue of section 25(1) above the patent under this Act is to be treated as having been granted or, if proceedings for the surrender of the European patent (UK) have been begun before that date, until those proceedings are finally disposed of; and he shall not then take any action if the decision is to accept the surrender of the European patent.”.

Applications and amendments not to include additional matter 20 For section 76 of the M83Patents Act 1977 (amendments of applications and patents

not to include added matter) substitute—

“76 Amendments of applications and patents not to include added matter.

(1) An application for a patent which— (a) is made in respect of matter disclosed in an earlier application, or in

the specification of a patent which has been granted, and

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(b) discloses additional matter, that is, matter extending beyond that disclosed in the earlier application, as filed, or the application for the patent, as filed,

may be filed under section 8(3), 12 or 37(4) above, or as mentioned in section 15(4) above, but shall not be allowed to proceed unless it is amended so as to exclude the additional matter.

(2) No amendment of an application for a patent shall be allowed under section 17(3), 18(3) or 19(1) if it results in the application disclosing matter extending beyond that disclosed in the application as filed.

(3) No amendment of the specification of a patent shall be allowed under section 27(1), 73 or 75 if it—

(a) results in the specification disclosing additional matter, or (b) extends the protection conferred by the patent.”.

Annotations:

Marginal Citations M83 1977 c. 37.

Effect of European patent (UK) 21 (1) Section 77 of the Patents Act 1977 (effect of European patent (UK)) is amended as

follows.

(2) For subsection (3) (effect of finding of partial validity on pending proceedings) substitute—

“(3) Where in the case of a European patent (UK)— (a) proceedings for infringement, or proceedings under section 58

above, have been commenced before the court or the comptroller and have not been finally disposed of, and

(b) it is established in proceedings before the European Patent Office that the patent is only partially valid,

the provisions of section 63 or, as the case may be, of subsections (7) to (9) of section 58 apply as they apply to proceedings in which the validity of a patent is put in issue and in which it is found that the patent is only partially valid.”.

(3) For subsection (4) (effect of amendment or revocation under European Patent Convention) substitute—

“(4) Where a European patent (UK) is amended in accordance with the European Patent Convention, the amendment shall have effect for the purposes of Parts I and III of this Act as if the specification of the patent had been amended under this Act; but subject to subsection (6)(b) below.

(4A) Where a European patent (UK) is revoked in accordance with the European Patent Convention, the patent shall be treated for the purposes of Parts I and III of this Act as having been revoked under this Act.”.

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(4) In subsection (6) (filing of English translation), in paragraph (b) (amendments) for “a translation of the amendment into English” substitute “a translation into English of the specification as amended”.

(5) In subsection (7) (effect of failure to file translation) for the words from “a translation” to “above” substitute “such a translation is not filed”.

The state of the art: material contained in patent applications 22 In section 78 of the M84Patents Act 1977 (effect of filing an application for a

European patent (UK)), for subsection (5) (effect of withdrawal of application, &c.) substitute—

“(5) Subsections (1) to (3) above shall cease to apply to an application for a European patent (UK), except as mentioned in subsection (5A) below, if—

(a) the application is refused or withdrawn or deemed to be withdrawn, or

(b) the designation of the United Kingdom in the application is withdrawn or deemed to be withdrawn,

but shall apply again if the rights of the applicant are re-established under the European Patent Convention, as from their re-establishment.

(5A) The occurrence of any of the events mentioned in subsection (5)(a) or (b) shall not affect the continued operation of section 2(3) above in relation to matter contained in an application for a European patent (UK) which by virtue of that provision has become part of the state of the art as regards other inventions.”.

Annotations:

Marginal Citations M84 1977 c. 37.

Jurisdiction in certain proceedings 23 Section 88 of the Patents Act 1977 (jurisdiction in legal proceedings in connection

with Community Patent Convention) is repealed.

Effect of filing international application for patent 24 (1) Section 89 of the Patents Act 1977 (effect of filing international application for

patent) is amended as follows.

(2) After subsection (3) insert—

“(3A) If the relevant conditions are satisfied with respect to an application which is amended in accordance with the Treaty and the relevant conditions are not satisfied with respect to any amendment, that amendment shall be disregarded.”.

(3) After subsection (4) insert—

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“(4A) In subsection (4)(a) “a copy of the application” includes a copy of the application published in accordance with the Treaty in a language other than that in which it was filed.”.

(4) For subsection (10) (exclusion of certain applications subject to European Patent Convention) substitute—

“(10) The foregoing provisions of this section do not apply to an application which falls to be treated as an international application for a patent (UK) by reason only of its containing an indication that the applicant wishes to obtain a European patent (UK); but without prejudice to the application of those provisions to an application which also separately designates the United Kingdom.”.

(5) The amendments in this paragraph shall be deemed always to have had effect.

(6) This paragraph shall be repealed by the order bringing the following paragraph into force.

25 For section 89 of the M85Patents Act 1977 (effect of filing international application for patent) substitute—

“89 Effect of international application for patent.

(1) An international application for a patent (UK) for which a date of filing has been accorded under the Patent Co-operation Treaty shall, subject to—

section 89A (international and national phases of application), and section 89B (adaptation of provisions in relation to international application),

be treated for the purposes of Parts I and III of this Act as an application for a patent under this Act.

(2) If the application, or the designation of the United Kingdom in it, is withdrawn or (except as mentioned in subsection (3)) deemed to be withdrawn under the Treaty, it shall be treated as withdrawn under this Act.

(3) An application shall not be treated as withdrawn under this Act if it, or the designation of the United Kingdom in it, is deemed to be withdrawn under the Treaty—

(a) because of an error or omission in an institution having functions under the Treaty, or

(b) because, owing to circumstances outside the applicant’s control, a copy of the application was not received by the International Bureau before the end of the time limited for that purpose under the Treaty,

or in such other circumstances as may be prescribed.

(4) For the purposes of the above provisions an application shall not be treated as an international application for a patent (UK) by reason only of its containing an indication that the applicant wishes to obtain a European patent (UK), but an application shall be so treated if it also separately designates the United Kingdom.

(5) If an international application for a patent which designates the United Kingdom is refused a filing date under the Treaty and the comptroller

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determines that the refusal was caused by an error or omission in an institution having functions under the Treaty, he may direct that the application shall be treated as an application under this Act, having such date of filing as he may direct.

89A International and national phases of application.

(1) The provisions of the Patent Co-operation Treaty relating to publication, search, examination and amendment, and not those of this Act, apply to an international application for a patent (UK) during the international phase of the application.

(2) The international phase of the application means the period from the filing of the application in accordance with the Treaty until the national phase of the application begins.

(3) The national phase of the application begins— (a) when the prescribed period expires, provided any necessary

translation of the application into English has been filed at the Patent Office and the prescribed fee has been paid by the applicant; or

(b) on the applicant expressly requesting the comptroller to proceed earlier with the national phase of the application, filing at the Patent Office—

(i) a copy of the application, if none has yet been sent to the Patent Office in accordance with the Treaty, and

(ii) any necessary translation of the application into English, and paying the prescribed fee.

For this purpose a “copy of the application” includes a copy published in accordance with the Treaty in a language other than that in which it was originally filed.

(4) If the prescribed period expires without the conditions mentioned in subsection (3)(a) being satisfied, the application shall be taken to be withdrawn.

(5) Where during the international phase the application is amended in accordance with the Treaty, the amendment shall be treated as made under this Act if—

(a) when the prescribed period expires, any necessary translation of the amendment into English has been filed at the Patent Office, or

(b) where the applicant expressly requests the comptroller to proceed earlier with the national phase of the application, there is then filed at the Patent Office—

(i) a copy of the amendment, if none has yet been sent to the Patent Office in accordance with the Treaty, and

(ii) any necessary translation of the amendment into English; otherwise the amendment shall be disregarded.

(6) The comptroller shall on payment of the prescribed fee publish any translation filed at the Patent Office under subsection (3) or (5) above.

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89B Adaptation of provisions in relation to international application.

(1) Where an international application for a patent (UK) is accorded a filing date under the Patent Co-operation Treaty—

(a) that date, or if the application is re-dated under the Treaty to a later date that later date, shall be treated as the date of filing the application under this Act,

(b) any declaration of priority made under the Treaty shall be treated as made under section 5(2) above, and where in accordance with the Treaty any extra days are allowed, the period of 12 months specified in section 5(2) shall be treated as altered accordingly, and

(c) any statement of the name of the inventor under the Treaty shall be treated as a statement filed under section 13(2) above.

(2) If the application, not having been published under this Act, is published in accordance with the Treaty it shall be treated, for purposes other than those mentioned in subsection (3), as published under section 16 above when the conditions mentioned in section 89A(3)(a) are complied with.

(3) For the purposes of section 55 (use of invention for service of the Crown) and section 69 (infringement of rights conferred by publication) the application, not having been published under this Act, shall be treated as published under section 16 above—

(a) if it is published in accordance with the Treaty in English, on its being so published; and

(b) if it is so published in a language other than English— (i) on the publication of a translation of the application in

accordance with section 89A(6) above, or (ii) on the service by the applicant of a translation into English

of the specification of the application on the government department concerned or, as the case may be, on the person committing the infringing act.

The reference in paragraph (b)(ii) to the service of a translation on a government department or other person is to its being sent by post or delivered to that department or person.

(4) During the international phase of the application, section 8 above does not apply (determination of questions of entitlement in relation to application under this Act) and section 12 above (determination of entitlement in relation to foreign and convention patents) applies notwithstanding the application; but after the end of the international phase, section 8 applies and section 12 does not.

(5) When the national phase begins the comptroller shall refer the application for so much of the examination and search under section 17 and 18 above as he considers appropriate in view of any examination or search carried out under the Treaty.”.

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Annotations:

Marginal Citations M85 1977 c. 37.

Proceedings before the court or the comptroller 26 In the M86Patents Act 1977, after section 99 (general powers of the court) insert—

“99A Power of Patents Court to order report.

(1) Rules of court shall make provision empowering the Patents Court in any proceedings before it under this Act, on or without the application of any party, to order the Patent Office to inquire into and report on any question of fact or opinion.

(2) Where the court makes such an order on the application of a party, the fee payable to the Patent Office shall be at such rate as may be determined in accordance with rules of court and shall be costs of the proceedings unless otherwise ordered by the court.

(3) Where the court makes such an order of its own motion, the fee payable to the Patent Office shall be at such rate as may be determined by the Lord Chancellor with the approval of the Treasury and shall be paid out of money provided by Parliament.

99B Power of Court of Session to order report.

(1) In any proceedings before the Court of Session under this Act the court may, either of its own volition or on the application of any party, order the Patent Office to inquire into and report on any question of fact or opinion.

(2) Where the court makes an order under subsection (1) above of its own volition the fee payable to the Patent Office shall be at such rate as may be determined by the Lord President of the Court of Session with the consent of the Treasury and shall be defrayed out of moneys provided by Parliament.

(3) Where the court makes an order under subsection (1) above on the application of a party, the fee payable to the Patent Office shall be at such rate as may be provided for in rules of court and shall be treated as expenses in the cause.”.

Annotations:

Marginal Citations M86 1977 c. 37.

27 For section 102 of the M87Patents Act 1977 (right of audience in patent proceedings) substitute—

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“102 Right of audience, &c. in proceedings before comptroller.

(1) A party to proceedings before the comptroller under this Act, or under any treaty or international convention to which the United Kingdom is a party, may appear before the comptroller in person or be represented by any person whom he desires to represent him.

(2) No offence is committed under the enactments relating to the preparation of documents by persons not legally qualified by reason only of the preparation by any person of a document, other than a deed, for use in such proceedings.

(3) Subsection (1) has effect subject to rules made under section 281 of the Copyright, Designs and Patents Act 1988 (power of comptroller to refuse to recognise certain agents).

(4) In its application to proceedings in relation to applications for, or otherwise in connection with, European patents, this section has effect subject to any restrictions imposed by or under the European Patent Convention.

102A Right of audience, &c. in proceedings on appeal from the comptroller.

(1) A solicitor of the Supreme Court may appear and be heard on behalf of any party to an appeal under this Act from the comptroller to the Patents Court.

(2) A registered patent agent or a member of the Bar not in actual practice may do, in or in connection with proceedings on an appeal under this Act from the comptroller to the Patents Court, anything which a solicitor of the Supreme Court might do, other than prepare a deed.

(3) The Lord Chancellor may by regulations— (a) provide that the right conferred by subsection (2) shall be subject to

such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient, and

(b) apply to persons exercising that right such statutory provisions, rules of court and other rules of law and practice applying to solicitors as may be specified in the regulations;

and different provision may be made for different descriptions of proceedings.

(4) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) This section is without prejudice to the right of counsel to appear before the High Court.”.

Annotations:

Marginal Citations M87 1977 c. 37.

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Provision of information 28 In section 118 of the M88Patents Act 1977 (information about patent applications,

&c.), in subsection (3) (restriction on disclosure before publication of application: exceptions) for “section 22(6)(a) above” substitute “section 22(6) above”.

Annotations:

Marginal Citations M88 1977 c. 37.

Power to extend time limits 29 In section 123 of the Patents Act 1977 (rules), after subsection (3) insert—

“(3A) It is hereby declared that rules— (a) authorising the rectification of irregularities of procedure, or (b) providing for the alteration of any period of time,

may authorise the comptroller to extend or further extend any period notwithstanding that the period has already expired.”.

Availability of samples of micro-organisms 30 In the Patents Act 1977 after section 125 insert—

“125A Disclosure of invention by specification: availability of samples of micro-organisms.

(1) Provision may be made by rules prescribing the circumstances in which the specification of an application for a patent, or of a patent, for an invention which requires for its performance the use of a micro-organism is to be treated as disclosing the invention in a manner which is clear enough and complete enough for the invention to be performed by a person skilled in the art.

(2) The rules may in particular require the applicant or patentee— (a) to take such steps as may be prescribed for the purposes of making

available to the public samples of the micro-organism, and (b) not to impose or maintain restrictions on the uses to which such

samples may be put, except as may be prescribed.

(3) The rules may provide that, in such cases as may be prescribed, samples need only be made available to such persons or descriptions of persons as may be prescribed; and the rules may identify a description of persons by reference to whether the comptroller has given his certificate as to any matter.

(4) An application for revocation of the patent under section 72(1)(c) above may be made if any of the requirements of the rules cease to be complied with.”.

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[F741SCHEDULE 5A Section 296ZE

PERMITTED ACTS TO WHICH SECTION 296ZE APPLIES

Annotations:

Amendments (Textual) F741 Sch. 5A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498),

reg. 24(2), Sch. 3 (with regs. 31-40)

PART 1

COPYRIGHT EXCEPTIONS

section 29 (research and private study)

section 32(1), (2) and (3) (things done for purposes of instruction or examination)

section 35 (recording by educational establishments of broadcasts)

section 36 (reprographic copying by educational establishments of passages from published works)

section 38 (copying by librarians: articles in periodicals)

section 39 (copying by librarians: parts of published works)

section 41 (copying by librarians: supply of copies to other libraries)

section 42 (copying by librarians or archivists: replacement copies of works)

section 43 (copying by librarians or archivists: certain unpublished works)

section 44 (copy of work required to be made as condition of export)

section 45 (Parliamentary and judicial proceedings)

section 46 (Royal Commissions and statutory inquiries)

section 47 (material open to public inspection or on official register)

section 48 (material communicated to the Crown in the course of public business)

section 49 (public records)

section 50 (acts done under statutory authority)

section 61 (recordings of folksongs)

section 68 (incidental recording for purposes of broadcast)

section 69 (recording for purposes of supervision and control of broadcasts)

section 70 (recording for purposes of time-shifting)

section 71 (photographs of broadcasts)

section 74 (provision of sub-titled copies of broadcast)

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section 75 (recording for archival purposes)

PART 2

RIGHTS IN PERFORMANCES EXCEPTIONS

paragraph 4 of Schedule 2 (things done for purposes of instruction or examination) paragraph 6 of Schedule 2 (recording of broadcasts by educational establishments) paragraph 7 of Schedule 2 (copy of work required to be made as condition of export)paragraph 8 of Schedule 2 (Parliamentary and judicial proceedings) paragraph 9 of Schedule 2 (Royal Commissions and statutory inquiries) paragraph 10 of Schedule 2 (public records) paragraph 11 of Schedule 2 (acts done under statutory authority) paragraph 14 of Schedule 2 (recordings of folksongs) paragraph 16 of Schedule 2 (incidental recording for purposes of broadcast) paragraph 17 of Schedule 2 (recordings for purposes of supervision and control of broadcasts)paragraph 17A of Schedule 2 (recording for the purposes of time-shifting) paragraph 17B of Schedule 2 (photographs of broadcasts) paragraph 20 of Schedule 2 (provision of sub-titled copies of broadcast) paragraph 21 of Schedule 2 (recording of broadcast for archival purposes)

PART 3

DATABASE RIGHT EXCEPTIONS

regulation 20 of and Schedule 1 to the Copyright and Rights in Databases Regulations 1997 (S.I. 1997/3032)]

SCHEDULE 6 Section 301.

PROVISIONS FOR THE BENEFIT OF THE HOSPITAL FOR SICK CHILDREN

Interpretation 1 (1) In this Schedule—

“the Hospital” means The Hospital for Sick Children, Great Ormond Street, London,

“the trustees” means the special trustees appointed for the Hospital under the M89National Health Service Act 1977 [F742or the National Health Service Act 2006]; and

“the work” means the play “Peter Pan” by Sir James Matthew Barrie.

(2) Expressions used in this Schedule which are defined for the purposes of Part I of this Act (copyright) have the same meaning as in that Part.

Annotations:

Amendments (Textual) F742 Words in Sch. 6 para. 1(1) inserted (1.3.2007) by National Health Service (Consequential Provisions)

Act 2006 (c. 43), ss. 2, 8, Sch. 1 para 114(a) (with s. 5, Sch. 3 Pt. 1)

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Marginal Citations M89 1977 c. 49.

Entitlement to royalty 2 (1) The trustees are entitled, subject to the following provisions of this Schedule,

to a royalty in respect of any public performance, commercial publication [F743or communication to the public] of the whole or any substantial part of the work or an adaptation of it.

(2) Where the trustees are or would be entitled to a royalty, another form of remuneration may be agreed.

Annotations:

Amendments (Textual) F743 Words in Sch. 6 para. 2(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 6(2)(f) (with regs. 31-40)

Exceptions 3 No royalty is payable in respect of—

(a) anything which immediately before copyright in the work expired on 31st December 1987 could lawfully have been done without the licence, or further licence, of the trustees as copyright owners; or

(b) anything which if copyright still subsisted in the work could, by virtue of any provision of Chapter III of Part I of this Act (acts permitted notwithstanding copyright), be done without infringing copyright.

Saving 4 No royalty is payable in respect of anything done in pursuance of arrangements

made before the passing of this Act.

Procedure for determining amount payable 5 (1) In default of agreement application may be made to the Copyright Tribunal which

shall consider the matter and make such order regarding the royalty or other remuneration to be paid as it may determine to be reasonable in the circumstances.

(2) Application may subsequently be made to the Tribunal to vary its order, and the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances.

(3) An application for variation shall not, except with the special leave of the Tribunal, be made within twelve months from the date of the original order or of the order on a previous application for variation.

(4) A variation order has effect from the date on which it is made or such later date as may be specified by the Tribunal.

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[F744(5) The provisions of Chapter VIII of Part I (general provisions relating to the Copyright Tribunal) apply in relation to the Tribunal when exercising any jurisdiction under this paragraph.]

Annotations:

Amendments (Textual) F744 Sch. 6 para. 5(5) added (1.12.1996) by S.I. 1996/2967, reg. 24(3) (with Pt. III)

Sums received to be held on trust 6 The sums received by the trustees by virtue of this Schedule, after deduction of any

relevant expenses, shall be held by them on trust for the purposes of the Hospital.

Right only for the benefit of the Hospital 7 (1) The right of the trustees under this Schedule may not be assigned and shall cease if

the trustees purport to assign or charge it.

(2) The right may not be the subject of an order under [F745section 213 of the National Health Service Act 2006 or section 161 of the National Health Service (Wales) Act 2006] (transfers of trust property by order of the Secretary of State) and shall cease if the Hospital ceases to have a separate identity or ceases to have purposes which include the care of sick children.

(3) Any power of Her Majesty, the court (within the meaning of [F746the Charities Act 2011]) or any other person to alter the trusts of a charity is not exercisable in relation to the trust created by this Schedule.

Annotations:

Amendments (Textual) F745 Words in Sch. 6 para. 7(2) substituted (1.3.2007) by National Health Service (Consequential Provisions)

Act 2006 (c. 43), ss. 2, 8, Sch. 1 para. 114(b) (with s. 5, Sch. 3 Pt. 1) F746 Words in Sch. 6 para. 7(3) substituted (14.3.2012) by Charities Act 2011 (c. 25), ss. 354(1), 355, Sch.

7 para. 52 (with s. 20(2), Sch. 8)

SCHEDULE 7 Section 303(1).

CONSEQUENTIAL AMENDMENTS: GENERAL

British Mercantile Marine Uniform Act 1919 (c.62) 1 For section 2 of the British Mercantile Marine Uniform Act 1919 (copyright in

distinctive marks of uniform) substitute—

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“2 Right in registered design of distinctive marks of uniform.

The right of the Secretary of State in any design forming part of the British mercantile marine uniform which is registered under the Registered Designs Act 1949 is not limited to the period prescribed by section 8 of that Act but shall continue to subsist so long as the design remains on the register.”.

Chartered Associations (Protection of Names and Uniforms) Act 1926 (c.26) 2 In section 1(5) of the Chartered Associations (Protection of Names and Uniforms)

Act 1926 for “the copyright in respect thereof” substitute “ the right in the registered design ”.

Patents, Designs, Copyright and Trade Marks (Emergency) Act 1939 (c.107) 3 (1) The Patents, Designs, Copyright and Trade Marks (Emergency) Act 1939 is amended

as follows.

(2) In section 1 (effect of licence where owner is enemy or enemy subject)— (a) in subsection (1) after “a copyright” and “the copyright” insert “ or design

right ”; (b) in subsection (2) after “the copyright” insert “ or design right ” and for “or

(3) In section 2 (power of comptroller to grant licences)— (a) in subsection (1) after “a copyright”, “the copyright” (twice) and “the said

(b) in subsections (2) and (3) for “, or copyright” substitute “ , copyright or design right ”;

(d) in subsection (8)(c) for “or work in which copyright subsists” substitute “ work in which copyright subsists or design in which design right subsists ”.

(4) In section 5 (effect of war on international arrangements)— (a) in subsection (1) for “section twenty-nine of the Copyright Act 1911”

substitute “ section 159 or 256 of the Copyright, Designs and Patents Act 1988 (countries enjoying reciprocal copyright or design right protection) ”;

(b) in subsection (2) after “copyright” (four times) insert “ or design right ” and for “the Copyright Act 1911” (twice) substitute “ Part I or III of the Copyright, Designs and Patents Act 1988 ”.

(5) In section 10(1) (interpretation) omit the definition of “copyright”, and for the definitions of “design”, “invention”, “patent” and “patentee” substitute—

““design” has in reference to a registered design the same meaning as in the Registered Designs Act 1949, and in reference to design right the same meaning as in Part III of the Copyright, Designs and Patents Act 1988;

“invention” and “patent” have the same meaning as in the Patents Act 1977.”.

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Crown Proceedings Act 1947 (c.44) 4 (1) In the Crown Proceedings Act 1947 for section 3 (provisions as to industrial property)

substitute—

“3 Infringement of intellectual property rights.

(1) Civil proceedings lie against the Crown for an infringement committed by a servant or agent of the Crown, with the authority of the Crown, of—

(a) a patent, (b) a registered trade mark or registered service mark, (c) the right in a registered design, (d) design right, or (e) copyright;

but save as provided by this subsection no proceedings lie against the Crown by virtue of this Act in respect of an infringement of any of those rights.

(2) Nothing in this section, or any other provision of this Act, shall be construed as affecting—

(a) the rights of a government department under section 55 of the Patents Act 1977, Schedule 1 to the Registered Designs Act 1949 or section 240 of the Copyright, Designs and Patents Act 1988 (Crown use of patents and designs), or

(b) the rights of the Secretary of State under section 22 of the Patents Act 1977 or section 5 of the Registered Designs Act 1949 (security of information prejudicial to defence or public safety).”.

(2) In the application of sub-paragraph (1) to Northern Ireland— (a) the reference to the Crown Proceedings Act 1947 is to that Act as it applies

to the Crown in right of Her Majesty’s Government in Northern Ireland, as well as to the Crown in right of Her Majesty’s Government in the United Kingdom, and

(b) in the substituted section 3 as it applies in relation to the Crown in right of Her Majesty’s Government in Northern Ireland, subsection (2)(b) shall be omitted.

Patents Act 1949 (c.87) 5 In section 47 of the Patents Act 1949 (rights of third parties in respect of Crown use

of patent), in the closing words of subsection (1) (which relate to the use of models or documents), after “copyright” insert “ or design right ”.

Public Libraries (Scotland) Act 1955 (c.27) F7476 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F747 Sch. 7 para. 6 repealed (1.12.1996) by S.I. 1996/2967, reg. 11(7) (with Pt. III)

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London County Council (General Powers) Act 1958 (c.xxi) 7 In section 36 of the London County Council (General Powers) Act 1958 (power

as to libraries: provision and repair of things other than books) for subsection (5) substitute—

“(5) Nothing in this section shall be construed as authorising an infringement of copyright.”.

Public Libraries and Museums Act 1964 (c.75) F7488 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F748 Sch. 7 para. 8 repealed (1.12.1996) by S.I. 1996/2967, reg. 11(7) (with Pt. III)

Marine, &c., Broadcasting (Offences) Act 1967 (c.41) 9 F749. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F749 Sch. 7 para. 9 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), ss. 124, 125(1), 126(2), Sch.

9 Pt. 1 (with Sch. 8 Pt. 1)

Medicines Act 1968 (c.67) 10 (1) Section 92 of the Medicines Act 1968 (scope of provisions restricting promotion of

sales of medicinal products) is amended as follows.

(2) In subsection (1) (meaning of “advertisement”) for the words from “or by the exhibition” to “service” substitute “ or by means of a photograph, film, sound recording, broadcast or cable programme, ”.

(3) F750. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) For subsection (6) substitute—

“(6) In this section “film”, “sound recording”, “broadcast”, “cable programme”, “cable programme service”, and related expressions, have the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 (copyright).”.

Annotations:

Amendments (Textual) F750 Sch. 7 para. 10(3) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

Copyright, Designs and Patents Act 1988 (c. 48) SCHEDULE 7 – Consequential amendments: general Document Generated: 2013-10-17

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Post Office Act 1969 (c.48) 11 In Schedule 10 to the Post Office Act 1969 (special transitional provisions relating

to use of patents and registered designs), in the closing words of paragraphs 8(1) and 18(1) (which relate to the use of models and documents), after “copyright” insert “ or design right ”.

Merchant Shipping Act 1970 (c.36) 12 In section 87 of the Merchant Shipping Act 1970 (merchant navy uniform), for

subsection (4) substitute—

“(4) Where any design forming part of the merchant navy uniform has been registered under the Registered Designs Act 1949 and the Secretary of State is the proprietor of the design, his right in the design is not limited to the period prescribed by section 8 of that Act but shall continue to subsist so long as the design remains registered.”.

Taxes Management Act 1970 (c.9) 13 In section 16 of the Taxes Management Act 1970 (returns to be made in respect of

certain payments)— (a) in subsection (1)(c), and (b) in subsection (2)(b),

for “or public lending right” substitute “ , public lending right, right in a registered design or design right ”.

Tribunals and Inquiries Act 1971 (c.62) F75114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F751 Sch. 7 para. 14 repealed (1.10.1992) by Tribunals and Inquiries Act 1992 (c. 53), ss. 18(2), 19(2), Sch.

4 Pt.I

Fair Trading Act 1973 (c.41) 15 F752. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F752 Sch. 7 para. 15 repealed (20.6.2003) by 2002 c. 40, ss. 278(2), 279, Sch. 26; S.I. 2003/1397, art. 2(1),

Sch.

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House of Commons Disqualification Act 1975 (c.24) 16 In Part II of Schedule 1 to the House of Commons Disqualification Act 1975

(bodies of which all members are disqualified), at the appropriate place insert “ The Copyright Tribunal ”.

Northern Ireland Assembly Disqualification Act 1975 (c.25) 17 In Part II of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975

(bodies of which all members are disqualified), at the appropriate place insert “ The Copyright Tribunal ”.

Restrictive Trade Practices Act 1976 (c.34) 18 (1) The Restrictive Trade Practices Act 1976 is amended as follows.

(2) In Schedule 1 (excluded services) for paragraph 10 (services of patent agents) substitute—

“10 The services of registered patent agents (within the meaning of Part V of the Copyright, Designs and Patents Act 1988) in their capacity as such.”;

and in paragraph 10A (services of European patent attorneys) for “section 84(7) of the Patents Act 1977” substitute “ Part V of the Copyright, Designs and Patents Act 1988 ”.

(3) In Schedule 3 (excepted agreements), after paragraph 5A insert—

“ Design right 5B (1) This Act does not apply to—

(a) a licence granted by the owner or a licensee of any design right, (b) an assignment of design right, or (c) an agreement for such a licence or assignment,

if the licence, assignment or agreement is one under which no such restrictions as are described in section 6(1) above are accepted, or no such information provisions as are described in section 7(1) above are made, except in respect of articles made to the design; but subject to the following provisions.

(2) Sub-paragraph (1) does not exclude a licence, assignment or agreement which is a design pooling agreement or is granted or made (directly or indirectly) in pursuance of a design pooling agreement.

(3) In this paragraph a “design pooling agreement” means an agreement— (a) to which the parties are or include at least three persons(the

“principal parties”) each of whom has an interest in one or more design rights, and

(b) by which each principal party agrees, in respect of design right in which he has, or may during the currency of the agreement acquire, an interest to grant an interest (directly or indirectly) to one or more of the other principal parties, or to one or more of those parties and to other persons.

(4) In this paragraph—

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“assignment”, in Scotland, means assignation; and “interest” means an interest as owner or licensee of design

right.

(5) This paragraph applies to an interest held by or granted to more than one person jointly as if they were one person.

(6) References in this paragraph to the granting of an interest to a person indirectly are to its being granted to a third person for the purpose of enabling him to make a grant to the person in question.”.

Resale Prices Act 1976 (c. 53) 19 In section 10(4) of the Resale Prices Act 1976 (patented articles: articles to be

treated in same way), in paragraph (a) after “protected” insert “ by design right or ”.

Patents Act 1977 (c. 37) 20 In section 57 of the Patents Act 1977 (rights of third parties in respect of Crown use

of patent), in the closing words of subsection (1) (which relate to the use of models or documents), after “copyright” insert “ or design right ”.

21 In section 105 of the Patents Act 1977 (privilege in Scotland for communications relating to patent proceedings), omit “within the meaning of section 104 above”, make the existing text subsection (1) and after it insert—

“(2) In this section— “patent proceedings” means proceedings under this Act or any

of the relevant conventions, before the court, the comptroller or the relevant convention court, whether contested or uncontested and including an application for a patent; and

“the relevant conventions” means the European Patent Convention, the Community Patent Convention and the Patent Co- operation Treaty.”.

22 In section 123(7) of the Patents Act 1977 (publication of case reports by the comptroller)—

(a) for “and registered designs” substitute “ registered designs or design right ”, (b) for “and copyright” substitute “ , copyright and design right ”.

23 In section 130(1) of the Patents Act 1977 (interpretation), in the definition of “court”, for paragraph (a) substitute—

“(a) as respects England and Wales, the High Court or any patents county court having jurisdiction by virtue of an order under section 287 of the Copyright, Designs and Patents Act 1988;”.

Unfair Contract Terms Act 1977 (c. 50) 24 In paragraph 1 of Schedule 1 to the Unfair Contract Terms Act 1977 (scope of

main provisions: excluded contracts), in paragraph (c) (contracts relating to grant or transfer of interest in intellectual property) after “copyright” insert “ or design right ”.

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Judicature (Northern Ireland) Act 1978 (c. 23) 25 In section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of

privilege against self-incrimination in certain proceedings relating to intellectual property), in subsection (5) (meaning of “intellectual property”) after “copyright” insert “ or design right ”.

Capital Gains Tax Act 1979 (c. 14) F75326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F753 Sch. 7 para. 26 repealed (6.3.1992 with effect as mentioned in s. 289(1)(2) of the repealing Act) by

Taxation of Chargeable Gains Act 1992 (c. 12), ss. 289, 290, Sch.12 (with s. 201(3), Sch. 11 paras. 22, 26(2), 27)

British Telecommunications Act 1981 (c. 38) 27 F754. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F754 Sch. 7 para. 27 repealed (25.7.2003 for specified purposes and 29.12.2003 otherwise) by

Communications Act 2003 (c. 21), ss. 406, 408, 411, Sch. 19(1) (with Sch. 18, Sch. 19(1) Note 1); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with art. 3(2) (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11)

[F755Senior Courts Act 1981] (c. 54)

Annotations:

Amendments (Textual) F755 Sch. 7 para. 28 cross-heading: words wherever they occur in any enactment substituted (1.10.2009) by

virtue of Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

28 (1) The [F756Senior Courts Act 1981] is amended as follows.

(2) In section 72 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property), in subsection (5) (meaning of “intellectual property”) after “copyright” insert “ , design right ”.

(3) In Schedule 1 (distribution of business in the High Court), in paragraph 1(i) (business assigned to the Chancery Division: causes and matters relating to certain intellectual property) for “or copyright” substitute “ , copyright or design right ”.

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Annotations:

Amendments (Textual) F756 Sch. 7 para. 28: words wherever they occur in any enactment substituted (1.10.2009) by virtue of

Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

F75729, 30.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F757 Sch. 7 paras. 29, 30 repealed by Broadcasting Act 1990 (c. 42, SIF 96), s. 203(3), Sch. 21 (the repeal

being in force subject, as to para. 29, as mentioned in S.I. 1990/2347 art. 3(3))

Companies Act 1985 (c. 6)

[F75831(1) Part XII of the Companies Act 1985 (registration of charges) is amended as follows.

(2) In section 396 (registration of charges in England and Wales: charges which must be registered), in subsection (1)(j) for the words from “on a patent” to the end substitute “ or on any intellectual property ”, and after subsection (3) insert—

“(3A) The following are “intellectual property” for the purposes of this section— (a) any patent, trade mark, service mark, registered design, copyright

or design right; (b) any licence under or in respect of any such right.”.

(3) In section 410 (registration of charges in Scotland: charges which must be registered), in subsection (4)(c) (incorporeal moveable property) after subparagraph (vi) insert—

“(vii) a registered design or a licence in respect of such a design, (viii) a design right or a licence under a design right,”.]

Annotations:

Amendments (Textual) F758 Sch. 7 para. 31 repealed (prosp.) by Companies Act 1989 (c. 40, SIF 27), ss. 212, 215(2), Sch. 24

Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73) 32 In section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985

(withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property), in subsection (5) (meaning of “intellectual property”) after “copyright” insert “ or design right ”.

Atomic Energy Authority Act 1986 (c. 3) 33 In section 8(2) of the Atomic Energy Authority Act 1986 (powers of Authority as

to exploitation of research: meaning of “intellectual property”), after “copyrights” insert “ , design rights ”.

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Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I.3)) F75934 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F759 Sch. 7 para. 34 repealed (16.1.1994) by S.I. 1993/2810 (N.I. 12), arts. 1(2), 50(2), Sch.5 and expressed

to be repealed (1.12.1996) by S.I. 1996/2967, reg. 11(7) (with Pt. III)

Companies (Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I.6)) 35 F760. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F760 Sch. 7 para. 35 repealed (1.10.2009) by The Companies Act 2006 (Consequential Amendments,

Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(2), Sch. 2 (with art. 10)

Income and Corporation Taxes Act 1988 (c. 1) 36 (1) The Income and Corporation Taxes Act 1988 is amended as follows.

(2) In section 83 (fees and expenses deductible in computing profits and gains of trade) for “the extension of the period of copyright in a design” substitute “ an extension of the period for which the right in a registered design subsists ”.

(3) F761. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) F762. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) In section 821 (payments made under deduction of tax before passing of Act imposing income tax for that year), in subsection (3) (payments subject to adjustment) after paragraph (a) insert—

“(aa) any payment for or in respect of a right in a design to which section 537B applies; and”.

(8) In Schedule 19 (apportionment of income of close companies), in paragraph 10(4) (cessation or liquidation: debts taken into account although creditor is participator or associate), in paragraph (c) (payments for use of certain property) for the words from “tangible property” to “extend)” substitute—

“(i) tangible property, (ii) copyright in a literary, dramatic, musical or artistic work within

the meaning of Part I of the Copyright, Designs and Patents Act 1988 (or any similar right under the law of a country to which that Part does not extend), or

(iii) design right,”.

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(9) In Schedule 25 (taxation of UK-controlled foreign companies: exempt activities), in paragraph 9(1)(a) (investment business: holding of property) for “patents or copyrights” substitute “ or intellectual property ” and after that subparagraph insert—

“(1A) In sub-paragraph (1)(a) above “intellectual property” means patents, registered designs, copyright and design right (or any similar rights under the law of a country outside the United Kingdom).”.

Annotations:

Amendments (Textual) F761 Sch. 7 para. 36(3) repealed (6.4.2005 with effect as mentioned in s. 883 of the repealing Act) by Income

Tax (Trading and Other Income) Act 2005 (c. 5), ss. 883, 884, Sch. 3 (with savings and transitional provisions in Sch. 2)

F762 Sch. 7 para. 36(4)(5)(6) repealed (6.4.2007 with effect as mentioned in s. 1034 of the repealing Act) by Income Tax Act 2007 (c. 3), ss. 1031, 1034, Sch. 3 Pt. 1 (with savings and transitional provisions in Sch. 2)

SCHEDULE 8 Section 303(2).

REPEALS

1939 c. 107. Patents, Designs, Copyright and Trade Marks (Emergency) Act 1939.

In section 10(1), the definition of “copyright”.

1945 c. 16. Limitation (Enemies and War Prisoners) Act 1945.

In sections 2(1) and 4(a), the reference to section 10 of the Copyright Act 1911.

1949 c. 88. Registered Designs Act 1949. In section 3(2), the words “or original”. Section 5(5). In section 11(2), the words “or original”. In section 14(3), the words “or the Isle of Man”. Section 32. Section 33(2). Section 37(1). Section 38. In section 44(1), the definitions of “copyright” and “Journal”. In section 45, paragraphs (1) and (2).

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In section 46, paragraphs (1) and (2).

1949 c. 88.—cont. Registered Designs Act 1949. —cont.

Section 48(1).

In Schedule 1, in paragraph 3(1), the words “in such manner as may be prescribed by rules of court”. Schedule 2.

1956 c. 74. Copyright Act 1956. The whole Act. 1957 c. 6. Ghana Independence Act

1957. In Schedule 2, paragraph 12.

1957 c. 60. Federation of Malaya Independence Act 1957.

In Schedule 1, paragraphs 14 and 15.

1958 c. 44. Dramatic and Musical Performers’ Protection Act 1958.

The whole Act.

1958 c. 51. Public Records Act 1958. Section 11. Schedule 3.

1960 c. 52. Cyprus Independence Act 1960.

In the Schedule, paragraph 13.

1960 c. 55. Nigeria Independence Act 1960.

In Schedule 2, paragraphs 12 and 13.

1961 c. 1. Tanganyika Independence Act 1961.

In Schedule 2, paragraphs 13 and 14.

1961 c. 16. Sierra Leone Independence Act 1961.

In Schedule 3, paragraphs 13 and 14.

1961 c. 25. Patents and Designs (Renewals, Extensions and Fees) Act 1961.

The whole Act.

1962 c. 40. Jamaica Independence Act 1962.

In Schedule 2, paragraph 13.

1962 c. 54. Trinidad and Tobago Independence Act 1962.

In Schedule 2, paragraph 13.

1963 c. 53. Performers’ Protection Act 1963.

The whole Act.

1964 c. 46. Malawi Independence Act 1964.

In Schedule 2, paragraph 13.

1964 c. 65. Zambia Independence Act 1964.

In Schedule 1, paragraph 9.

. . . F763

Copyright, Designs and Patents Act 1988 (c. 48) SCHEDULE 8 – Repeals Document Generated: 2013-10-17

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. 1964 c. 93. Gambia Independence Act

1964. In Schedule 2, paragraph 12.

1966 c. 24. Lesotho Independence Act 1966.

In the Schedule, paragraph 9.

1966 c. 37. Barbados Independence Act 1966.

In Schedule 2, paragraph 12.

1967 c. 80. Criminal Justice Act 1967. In Parts I and IV of Schedule 3, the entries relating to the Registered Designs Act 1949.

1968 c. 56. Swaziland Independence Act 1968.

In the Schedule, paragraph 9.

1968 c. 67. Medicines Act 1968. In section 92(2)(a), the words from “or embodied” to “film”. Section 98.

1968 c. 68. Design Copyright Act 1968. The whole Act. 1971 c. 4. Copyright (Amendment) Act

1971. The whole Act.

1971 c. 23. Courts Act 1971. In Schedule 9, the entry relating to the Copyright Act 1956.

1971 c. 62. Tribunals and Inquiries Act 1971.

In Schedule 1, paragraph 24.

1972 c. 32. Performers’ Protection Act 1972.

The whole Act.

1975 c. 24. House of Commons Disqualification Act 1975.

In Part II of Schedule 1, the entry relating to the Performing Right Tribunal.

1975 c. 25. Northern Ireland Assembly Disqualification Act 1975.

In Part II of Schedule 1, the entry relating to the Performing Right Tribunal.

1977 c. 37. Patents Act 1977. Section 14(4) and (8). In section 28(3), paragraph (b) and the word “and” preceding it. Section 28(5) to (9). Section 49(3). Sections 72(3). Sections 84 and 85. Section 88.

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Section 104. In section 105, the words “within the meaning of section 104 above”. Sections 114 and 115. Section 123(2)(k). In section 130(1), the definition of “patent agent”. In section 130(7), the words “88(6) and (7),”. In Schedule 5, paragraphs 1 and 2, in paragraph 3 the words “and 44(1)” and “in each case”, and paragraphs 7 and 8.

1979 c. 2. Customs and Excise Management Act 1979.

In Schedule 4, the entry relating to the Copyright Act 1956.

1980 c. 21. Competition Act 1980. Section 14. 1981 c. 68. Broadcasting Act 1981. Section 20(9)(a). 1982 c. 35. Copyright Act 1956

(Amendment) Act 1982. The whole Act.

1983 c. 42. Copyright (Amendment) Act 1983.

The whole Act.

1984 c. 46. Cable and Broadcasting Act 1984.

Section 8(8).

Section 16(4) and (5). Sections 22 to 24. Section 35(2) and (3). Sections 53 and 54. In section 56(2), the definition of “the 1956 Act”. In Schedule 5, paragraphs 6, 7, 13 and 23.

1985 c. 21. Films Act 1985. Section 7(2). 1985 c. 41. Copyright (Computer

Software) Amendment Act 1985.

The whole Act.

1985 c. 61. Administration of Justice Act 1985.

Section 60.

1986 c. 39. Patents, Designs and Marks Act 1986.

In Schedule 2, paragraph 1(2)(a), in paragraph 1(2)(k)

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the words “subsection (1) (j) of section 396 and” and in paragraph 1(2)(1) the words “subsection (2)(i) of section 93”.

1988 c. 1. Income and Corporation Taxes Act 1988.

In Schedule 29, paragraph 5.

Annotations:

Amendments (Textual) F763 In Sch. 8 entry relating to the Malta Independence Act 1964 repealed (5.11.1993) by 1993 c. 50 s. 1(1),

Sch. 1 Pt.XVI

398 Copyright, Designs and Patents Act 1988 (c. 48) Document Generated: 2013-10-17

Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Copyright, Designs and Patents Act 1988. Any changes that have already been made by the team appear in the content and are referenced with annotations.

Changes and effects yet to be applied to : – Pt. 1 extended (with modifications) by S.I. 2012/799 art. 2-5 Sch. – Pt. 2 extended (with modifications) by S.I. 2012/799 art. 6 7 Sch. – s. 48(6) words inserted by 2012 c. 7 Sch. 5 para. 44(a) – s. 48(6) words omitted by 2012 c. 7 Sch. 5 para. 44(b) – s. 48(6) words omitted by 2012 c. 7 Sch. 14 para. 52 – s. 52 omitted by 2013 c. 24 s. 74(2) – s. 79(4)(g) omitted by 2013 c. 24 s. 74(3)(a) – s. 116(5) inserted by 2013 c. 24 s. 77(2) – s. 170(1) s. 170 renumbered as s. 170(1) by 2013 c. 24 s. 76(2) – s. 205A cross-heading word omitted by 2013 c. 24 Sch. 22 para. 6 – s. 205A word omitted by 2013 c. 24 Sch. 22 para. 6 – s. 276(7)(b) applied (with modifications) by S.I. 2011/2866 Sch. 2 – s. 278(1) applied (with modifications) by S.I. 2011/2866 Sch. 3 – s. 288(4) applied (with modifications) by S.I. 2011/2866 Sch. 2 – Sch. 1 para. 20 omitted by 2013 c. 24 s. 74(3)(b) – Sch. 2A para. 1(5) inserted by 2013 c. 24 Sch. 22 para. 4 – Sch. 2A heading word omitted by 2013 c. 24 Sch. 22 para. 3

Changes and effects yet to be applied to the whole Act, associated Parts and Chapters: – Blanket amendment words substituted by S.I. 2011/1043 art. 3 4 – Blanket amendment words substituted by S.I. 2011/1043 art. 3 6 Whole provisions yet to be inserted into this Act (including any effects on those provisions): – s. 116A-116D and cross-heading inserted by 2013 c. 24 s. 77(3) – s. 170(2)-(7) inserted by 2013 c. 24 s. 76(3) – Sch. A1 inserted by 2013 c. 24 Sch. 22 para. 1 – Sch. 2A para. 1A-1D and cross-heading inserted by 2013 c. 24 Sch. 22 para. 5

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Loi de 1988 sur le droit d'auteur, les dessins et modèles et les brevets (chapitre 48)

GB019: Droit d'auteur (Dessins et brevets), Loi (Ch. 48), 15/11/1988

Loi de 1988 sur le droit d’anteur, les dessins et modèles et les brevets

(du 15 novembre 1988)

Chapitre 48

(Extraits)*

PREMIÈRE PARTIE - DROIT D’AUTEUR

CHAPITRE PREMIER EXISTENCE, TITULARITÉ ET DURÉE DU DROIT D’AUTEUR

Dispositions liminaires

Article

1. Droit d’auteur et oeuvres protégées

2. Droits afférents aux oeuvres protégées

Catégories d’œuvres et dispositions connexes

3. Oeuvres littéraires, dramatiques et musicales

4. Oeuvres artistiques

5. Enregistrements sonores et films

6. Emissions de radiodiffusion

7. Programmes distribués par câble

8. Editions publiées

Paternité de l’oeuvre et titularité du droit d’auteur

9. Paternité de l’oeuvre

* Titre abrégé anglais: Copyright, Designs and Patents Act 1988. Entrée en vigueur des dispositions reproduites ici: Ve partie: …; VIe partie: 1er août 1989, à l'exception des articles 293 et 294, ainsi que de l'article 295 en ce qui concerne les paragraphes 1 à 11 et 17 à 30 de l'annexe 5. Source: Communication des autorités du Royaume-Uni. Les parties concernant les dessins et modèles et les brevets sont publiees dans La Propriètè industrielle, encarts Lois et traitès.

10. Oeuvres de collaboration

11. Premier titulaire du droit d’auteur

Durée du droit d’auteur

12. Durée du droit d’auteur sur les d’œuvres littéraires, dramatiques, musicales ou artistiques

13. Durée du droit d’auteur sur les enregistrements sonores et les films

14. Durée du droit d’auteur sur les émissions de radiodiffusion et les programmes distribués par câble

15. Durée du droit d’auteur sur la présentation typographique des éditions publiées

CHAPITRE II DROITS DU TITULAIRE DU DROIT D’AUTEUR

Actes réservés au titre du droit d’auteur

16. Actes réservés au titre du droit d’auteur sur une oeuvre

17. Atteinte au droit d’auteur par voie de copie ou reproduction

18. Atteinte au droit d’auteur tenant à la diffusion de copies ou d’exemplaires dans le public

19. Atteinte au droit d’auteur résultant de la représentation ou exécution, de la projection ou de la diffusion d’une oeuvre en public

20. Atteinte au droit d’auteur résultant de la radiodiffusion d’une oeuvre ou de sa programmation dans un service de câblodistribution

21. Atteinte au droit d’auteur résultant d’une adaptation ou d’un acte accompli par rapport à une adaptation

Atteinte indirecte au droit d’auteur

22. Atteinte indirecte: importation de copies ou d’exemplaires contrefaits

23. Atteinte indirecte: détention de copies ou d’exemplaires contrefaits et actes accomplis en relation avec ceux-ci

24. Atteinte indirecte: mise à disposition des moyens de faire des copies ou exemplaires contrefaits

25. Atteinte indirecte: autorisation d’utiliser des locaux pour des représentations ou exécutions illicites

26. Atteinte indirecte: mise à disposition d’appareils permettant des représentations ou exécutions illicites, etc.

Copies ou exemplaires contrefaits

27. Définition

CHAPITRE III ACTES AUTORISÉS PAR RAPPORT À DES OEUVRES PROTÉGÉES

Dispositions liminaires

28. Dispositions liminaires

Dispositions générales

29. Recherche et étude personnelle

30. Critique et comptes rendus d’événements d’actualité

31. Communication fortuite de matériel protégé

Enseignement

32. Actes accomplis à des fins didactiques ou en vue d’un examen

33. Anthologies destinées à être utilisées dans l’enseignement

34. Représentation ou exécution, diffusion ou projection d’une oeuvre dans le cadre des activités d’un établissement d’enseignement

35. Enregistrement d’émissions de radiodiffusion et de programmes distribués par câble par des établissements d’enseignement

36. Reproduction reprographique, par les établissements d’enseignement, de passages d’œuvres publiées

Bibliothèques et services d’archives

37. Bibliothèques et services d’archives: dispositions liminaires

38. Copies établies par les bibliothécaires: articles de périodiques

39. Copies établies par les bibliothécaires: parties d’œuvres publiées

40. Restrictions touchant à la reproduction en multiples exemplaires d’un même document

41. Copies établies par les bibliothécaires: fourniture de copies à d’autres bibliothèques

42. Copies établies par les bibliothécaires ou les archivistes: remplacement d’exemplaires d’œuvres

43. Copies établies par les bibliothécaires ou les archivistes: certaines d’œuvres non publiées

44. Copie d’une oeuvre exigée en cas d’exportation

Administration publique

45. Procédures parlementaires et judiciaires

46. Commissions royales et enquêtes légales

47. Documents mis à la disposition du public pour consultation ou consignés dans un registre officiel

48. Documents communiqués à la Couronne au cours d’une activité publique

49. Archives publiques

50. Actes accomplis en vertu de la loi

Dessins et modèles

51. Documents et maquettes

52. Conséquences de l’exploitation d’un dessin ou modèle tiré d’une oeuvre artistique

53. Actes accomplis sur la foi de l’enregistrement d’un dessin ou modèle

Caractères typographiques

54. Utilisation normale dans l’impression

55. Objets servant à établir un texte dans un caractère typographique donné

Oeuvres sous forme électronique

56. Transfert de copies d’œuvres sous forme électronique

Dispositions diverses : d’œuvres littéraires, dramatiques, musicales et artistiques

57. Oeuvres anonymes ou pseudonymes : actes autorisés dans l’hypothèse de l’expiration du droit d’auteur ou du décès de l’auteur

58. Certaines utilisations de notes ou autres enregistrements de paroles

59. Lecture ou récitation publique

60. Résumés d’articles scientifiques ou techniques

61. Enregistrement de chants folkloriques

62. Représentation de certaines d’œuvres artistiques exposées en public

63. Annonce de la vente d’une oeuvre artistique

64. Oeuvres ultérieures d’un même artiste

65. Reconstruction d’édifices

Dispositions diverses : enregistrements sonores, films et programmes d’ordinateur

66. Location d’enregistrements sonores, de films et de programmes d’ordinateur

67. Diffusion d’enregistrements sonores pour les besoins d’un club, d’une association, etc.

Disposition diverses : émissions de radiodiffusion et programmes distribués par câble

68. Enregistrement accessoire aux fins d’une émission de radiodiffusion ou d’un programme distribué par câble

69. Enregistrement aux fins de la supervision et du contrôle d’émissions de radiodiffusion et de programmes distribués par câble

70. Enregistrement en vue de l’aménagement du temps d'écoute

71. Photographies d’émissions de télévision ou de programmes distribués par câble

72. Projection ou diffusion publique gratuite d’une émission de radiodiffusion ou d’un programme distribué par câble

73. Réception et retransmission d’une émission dans un service de câblodistribution

74. Fourniture de copies sous-titrées d’émissions ou de programmes distribués par câble

75. Enregistrement à des fins d’archivage

Adaptations

76. Adaptations

CHAPITRE IV DROIT MORAL

Droit d’être identifié en tant qu’auteur ou réalisateur

77. Droit d’être identifié en tant qu’auteur ou réalisateur

78 Nécessité de revendiquer le droit

79. Exceptions

Droit de s’opposer à toute atteinte à l’oeuvre

80. Droit de s’opposer à toute atteinte à l’oeuvre

81. Exceptions

82. Aménagement du droit dans certains cas

83. Atteinte au droit résultant de la détention d’un objet de contrefaçon ou de certains actes accomplis par rapport à cet objet

Attribution abusive de l’oeuvre

84. Attribution abusive de l’œuvre

Droit à la non-divulgation de certains films et photographies

85. Droit à la non-divulgation de certains films et photographies

Dispositions supplémentaires

86. Durée des droits

87. Autorisation et renonciation au droit

88. Application des dispositions aux d’œuvres de collaboration

89. Application des dispositions à certaines parties d’œuvres

CHAPITRE V ACTES RELATIFS AUX DROITS AFFÉRENTS À DES OEUVRES PROTÉGÉES

Droit d’auteur

90. Cession et licences

91. Titularité d’un droit d’auteur à venir

92. Licences exclusives

93. Transmission du droit d’auteur par testament en même temps qu’une oeuvre non publiée

Droit moral

94. Inaliénabilité du droit moral

95. Transmission du droit moral pour cause de mort

CHAPITRE VI RECOURS EN CAS D’ATTEINTE AU DROIT D’AUTEUR

Droits et moyens de recours du titulaire du titulaire du droit d’auteur

96. Atteintes au droit d’auteur susceptibles de poursuites de la part du titulaire du droit d’auteur

97. Dispositions relatives aux dommages-intérêts en cas d’atteinte au droit d’auteur

98. Engagement de prendre une licence de plein droit à l’occasion de poursuites judiciaires

99. Ordonnance tendant à la remise de copies ou d’exemplaires contrefaits ou d’autres objets de contrefaçon

100. Droit de saisir des copies ou exemplaires contrefaits et autres objets de contrefaçon

Droits et moyens de recours du preneur d’une licence exclusive

101. Droits et réparations

102. Exercice de droits concurrents

Réparations en cas d’atteinte au droit moral

103. Réparations en cas d’atteinte au droit moral

Présomptions

104. Présomptions relatives à des d’œuvres littéraires, dramatiques, musicales et artistiques

105. Présomptions relatives à des enregistrements sonores, des films et des programmes d’ordinateur

106. Présomptions relatives aux d’œuvres protégées par un droit d’auteur appartenant à la Couronne

Délits

107. Responsabilité pénale liée à la fabrication et à l’exploitation d’objets de contrefaçon, etc.

108. Ordonnance tendant à la remise de copies ou d’exemplaires contrefaits ou d’autres objets de contrefaçon dans le cadre d’une procédure pénale

109. Mandats de perquisition

110. Délits commis par des personnes morales: responsabilité des dirigeants

Dispositions tendant à interdire l’importation de copies ou d’exemplaires contrefaits

111. Possibilité de considérer les copies ou exemplaires contrefaits comme des marchandises interdites

112. Pouvoir réglementaire des commissaires des douanes et des contributions indirectes

Dispositions supplémentaires

113. Remise d’objets de contrefaçon: forclusion

114. Ordonnance relative à l’affectation de copies ou d’exemplaires contrefaits ou d’autres objets de contrefaçon

115. Compétence des “county court” et “sheriff court”

PREMIÈRE PARTIE - DROIT D’AUTEUR

CHAPITRE PREMIER

EXISTENCE, TITULARITÉ ET DURÉE DU DROIT D’AUTEUR

Dispositions liminaires

Droit d’auteur et oeuvres protégées

1. 1) Le droit d’auteur est un droit de propriété qui s’applique, conformément aux dispositions de la présente partie, aux catégories d’œuvres suivantes:

a) oeuvres littéraires, dramatiques, musicales ou artistiques originales, b) enregistrements sonores, films, émissions de radiodiffusion ou programmes

distribués par câble, et

c) présentation typographique d’éditions publiées. 2) Dans la présente partie, on entend par “oeuvre protégée” une oeuvre de l’une des

catégories susmentionnées à laquelle s’applique le droit d’auteur.

3) Une oeuvre n’est protégée par le droit d’auteur que si les conditions énoncées dans la présente partie en ce qui concerne l’application de la protection au titre du droit d’auteur sont réunies (voir l’article153 et les dispositions qui y sont mentionnées).

Droits afférents aux oeuvres protégées

2. 1) Le titulaire du droit d’auteur sur une oeuvre de quelque catégorie que ce soit a le droit exclusif d’accomplir les actes précisés au chapitre II en tant qu’actes réservés au titre du droit d’auteur sur une oeuvre de cette catégorie.

2) En ce qui concerne certaines catégories d’œuvres protégées, les droits suivants, conférés aux termes du chapitre IV (droit moral), subsistent en faveur de l’auteur, du réalisateur ou de la personne ayant commandé l’œuvre, qu’il soit ou non titulaire du droit d’auteur:

a) article 77 (droit d’être identifié en tant qu’auteur ou réalisateur), b) article 80 (droit de s’opposer à toute atteinte à l’œuvre), et c) article 85 (droit à la non-divulgation de certains films et photographies).

Catégories d’œuvres et dispositions connexes

Oeuvres littéraires, dramatiques et musicales

3. 1) Dans la présente partie, “oeuvre littéraire” s’entend de toute oeuvre, autre qu’une oeuvre dramatique ou musicale, qui est écrite, parlée ou chantée et comprend, en conséquence

a) un tableau ou une compilation, et b) un programme d’ordinateur;

“oeuvre dramatique” désigne aussi une oeuvre chorégraphique ou une pantomime; et

“oeuvre musicale” s’entend d’une oeuvre de musique, à l’exclusion de tout texte destiné à être chanté ou parlé ou de toute action destinée à être représentée avec la musique.

2) Pour être protégée par le droit d’auteur, une oeuvre littéraire, dramatique ou musicale doit être consignée par écrit ou d’une autre manière et toute mention, dans la présente partie, de la date à laquelle une oeuvre est créée s’entend de la date à laquelle elle est ainsi consignée.

3) Aux fins de l’alinéa 2), il est indifférent que l’oeuvre soit consignée par l’auteur ou avec son autorisation et, lorsqu’elle n’est pas consignée par l’auteur, aucune disposition de cet alinéa n’a d’incidence sur la question de la protection du support en tant qu’élément distinct de l’oeuvre protégée.

Oeuvres artistiques

4. 1) Dans la présente partie, on entend par “oeuvre artistique” a) une oeuvre graphique, une photographie, une sculpture ou un collage, quelle

qu’en soit la qualité artistique,

b) une oeuvre d’architecture, qu’il s’agisse d’un édifice ou d’une maquette d’édifice, ou

c) une oeuvre artistique artisanale. 2) Dans la présente partie,

“édifice” désigne aussi toute construction fixe et toute partie d’un édifice ou d’une construction fixe;

“oeuvre graphique” désigne aussi

a) toute peinture ainsi que tout dessin, diagramme, carte géographique, graphique ou plan, et

b) toute gravure, eau-forte, lithographie, gravure sur bois ou oeuvre similaire; “photographie” s’entend de l’impression d’un rayon lumineux ou d’une autre radiation sur tout support sur lequel se forme une image ou à partir duquel une image peut se former par quelque moyen que ce soit, et qui ne fait pas partie d’un film;

“sculpture” désigne aussi tout moule ou modèle fait en vue de la réalisation d’une sculpture.

Enregistrements sonores et films

5. 1) Dans la présente partie “enregistrement sonore” s’entend a) d’un enregistrement de sons à partir duquel les sons peuvent être reproduits,

b) d’un enregistrement de l’ensemble ou de toute partie d’une oeuvre littéraire, dramatique ou musicale à partir duquel les sons reproduisant l’oeuvre ou une partie de celle-ci peuvent être obtenus,

quel que soit le support de l’enregistrement ou la méthode par laquelle les sons sont reproduits ou obtenus; et

“film” s’entend d’un enregistrement sur tout support à partir duquel il est possible d’obtenir par tout moyen une image animée.

2) Un enregistrement sonore ou un film ou une partie d’enregistrement ou de film constituant une copie d’un enregistrement sonore ou d’un film antérieur n’est pas protégé par le droit d’auteur.

Emissions de radiodiffusion

6. 1) Dans la présente partie, on entend par “émission de radiodiffusion” une transmission par télégraphie sans fil d’images visuelles, de sons ou d’autres informations qui

a) sont susceptibles d’être licitement captés par le public, ou qui b) sont transmis en vue de la présentation au public,

et toute mention de la radiodiffusion doit être interprétée de manière correspondante.

2) Une transmission codée n’est considérée comme susceptible d’être licitement captée par le public que si du matériel de décodage a été mis à la disposition du public par la personne qui assure la transmission ou par celle qui fournit le contenu de la transmission, ou avec son autorisation.

3) Dans la présente partie, toute mention de la personne qui réalise une émission, qui radiodiffuse une oeuvre ou qui fait figurer une oeuvre dans une émission doit être interprétée comme visant

a) la personne qui transmet le programme si elle est en quoi que ce soit responsable du contenu de celui-ci, et

b) toute personne qui fournit le programme et qui prend, avec la personne qui le transmet les dispositions nécessaires à cette transmission,

et dans la présente partie, le terme “programme”, en matière de radiodiffusion, désigne tout élément compris dans une émission.

4) Aux fins de la présente partie, dans le cas d’une transmission par satellite, le lieu d’où une émission de radiodiffusion est réalisée est celui d’où les signaux porteurs de l’émission sont transmis en direction du satellite.

5) Dans la présente partie, toute mention de la réception d’une émission de radiodiffusion doit être interprétée comme visant aussi la réception d’une émission relayée au moyen d’un système de télécommunication.

6) Dans la mesure où une émission de radiodiffusion porte atteinte au droit d’auteur sur une autre émission ou sur un programme distribué par câble, elle n’est pas protégée au titre du droit d’auteur.

Programmes distribués par câble

7. 1) Dans la présente partie “programme distribué par câble” s’entend de tout élément compris dans un service de câblodistribution;

“service de câblodistribution” s’entend d’un service qui consiste exclusivement ou principalement à envoyer des images visuelles, des sons ou d’autres informations au moyen d’un système de télécommunication, autrement que par la télégraphie sans fil, en vue de la réception

a) en deux endroits ou plus (simultanément ou à des moments différents, à la demande de différents usagers), ou

b) aux fins de la présentation au public, et qui n’est pas totalement ou en partie frappé d’exclusion aux termes des dispositions suivantes du présent article ou en vertu de celles-ci.

2) La définition du “service de câblodistribution” ne s’étend pas aux services suivants

a) un service ou la partie d’un service dont une caractéristique essentielle tient à ce que, pendant que des images visuelles, des sons ou d’autres informations sont acheminés par la personne qui assure le service, des informations (autres que des signaux envoyés pour le fonctionnement ou le contrôle du service) seront ou pourront être envoyées à partir de chaque lieu de réception, au moyen du même système ou (le cas échéant) de la même partie de ce système, à l’intention de la personne qui assure le service ou d’autres personnes qui le reçoivent:

b) un service exploité aux fins d’une activité commerciale dans le cadre duquel i) aucune autre personne que celle qui exerce cette activité n’intervient

dans le fonctionnement de l’appareil compris dans le système,

ii) les images visuelles, les sons ou autres informations ne sont acheminés par le système qu’aux seules fins de l’exercice de l’activité considérée et ne sont pas mis à la disposition des tiers à titre de service ou pour leur agrément, et

iii) le système n’est relié à aucun autre système de télécommunication;

c) un service exploité par une seule personne lorsque i) tous les appareils compris dans le système sont sous sa surveillance,

ii) les images visuelles, les sons ou autres informations acheminés par le système ne le sont que pour les besoins personnels de l’intéressé, et

iii) le système n’est relié à aucun autre système de télécommunication;

d) les services dans le cadre desquels

i) tous les appareils compris dans le système sont situés dans des locaux ou relient des locaux à occupant unique, et

ii) le système n’est relié à aucun autre système de télécommunication,

à l’exclusion des services exploités dans le cadre des aménagements prévus en faveur des résidents ou pensionnaires de locaux gérés commercialement;

e) les services exploités à l’intention de personnes assurant des services de radiodiffusion ou de câblodistribution ou fournissant des programmes pour ces services, dans la mesure de cette exploitation.

3) Le ministre (Secretary of State) peut modifier par voie d’ordonnance les dispositions de l’alinéa 2) de façon à ajouter ou supprimer des exceptions, sous réserve de toute disposition transitoire qui peut lui paraître appropriée.

4) Les ordonnances sont édictées par voie de dispositions réglementaires (statutory instrument) dont le projet doit avoir été soumis aux deux chambres du Parlement et approuvé par voie de résolution par chacune d’elles.

5) Dans la présente partie, toute mention de l’inclusion d’un programme distribué par câble ou d’une oeuvre dans un service de câblodistribution vise sa transmission dans le cadre du service et toute mention de la personne qui inclut le programme vise la personne qui assure le service.

6) Un programme distribué par câble n’est pas protégé au titre du droit d’auteur

a) s’il est inclus dans un service de câblodistribution par voie de réception et de retransmission immédiate d’une émission, ou

b) s’il porte atteinte, ou dans la mesure où il porte atteinte, au droit d’auteur sur un autre programme distribué par câble ou sur une émission.

Editions publiées

8. 1) Dans la présente partie, on entend par “édition publiée”, par rapport au droit d’auteur sur la présentation typographique d’une telle édition, une édition publiée d’une ou de plusieurs d’œuvres littéraires, dramatiques ou musicales ou de toute partie de celles-ci.

2) La présentation typographique d’une édition publiée n’est pas protégée au titre du droit d’auteur si elle reproduit, ou dans la mesure où elle reproduit, celle d’une précédente édition.

Paternité de l’oeuvre et titularité du droit d’auteur

Paternité de l’oeuvre

9. 1) Dans la présente partie, on entend par “auteur”, par rapport à une oeuvre, la personne qui a créé celle-ci.

2) Est réputé être l’auteur

a) s’agissant d’un enregistrement sonore ou d’un film, la personne qui prend les dispositions nécessaires à la réalisation de l’enregistrement ou du film;

b) s’agissant d’une émission de radiodiffusion, la personne qui réalise l’émission (voir l’article 6.3)) ou, s’agissant d’une émission dans laquelle une autre émission est relayée par voie de réception et de retransmission immédiate, la personne qui réalise cette autre émission;

c) s’agissant d’un programme distribué par câble, la personne qui assure le service de câblodistribution dans le cadre duquel le programme est distribué:

d) s’agissant de la présentation typographique d’une édition publiée, l’éditeur. 3) S’agissant d’une oeuvre littéraire, dramatique, musicale ou artistique créée par

ordinateur, est réputée être l’auteur la personne qui prend les dispositions nécessaires à la création de l’oeuvre.

4) Aux fins de la présente partie, une oeuvre est “d’auteur inconnu” si l’identité de l’auteur est inconnue, ou, s’agissant d’une oeuvre de collaboration, si l’identité d’aucun des auteurs n’est connue.

5) Aux fins de la présente partie, l’identité d’un auteur est considérée comme inconnue s’il est impossible à quiconque de la déterminer au moyen de recherches sérieuses; mais, une fois révélée, cette identité ne peut plus par la suite être considérée comme inconnue.

Oeuvres de collaboration

10. 1) Dans la présente partie, on entend par “oeuvre de collaboration” une oeuvre résultant de la collaboration d’au moins deux auteurs, dans laquelle la contribution de chacun est indissociable de celle de l’autre ou des autres auteurs.

2) Une émission de radiodiffusion est réputée constituer une oeuvre de collaboration dès lors qu’elle doit être considérée comme réalisée par plusieurs personnes (voir l’article 6.3)).

3) Dans la présente partie, toute mention de l’auteur d’une oeuvre doit, sauf indication contraire, être interprétée, par rapport à une oeuvre de collaboration, comme visant tous les auteurs de l’oeuvre.

Premier titulaire du droit d’auteur

11. 1) Sous réserve des dispositions suivantes, l’auteur d’une oeuvre est le premier titulaire de tout droit d’auteur existant sur celle-ci.

2) Lorsqu’une oeuvre littéraire, dramatique, musicale ou artistique est créée par un employé dans le cadre de son emploi, l’employeur est, sous réserve de toute stipulation contraire, le premier titulaire de tout droit d’auteur sur cette oeuvre.

3) Les dispositions du présent article ne sont pas applicables au droit d’auteur reconnu à la Couronne ou aux Assemblées parlementaires (voir les articles 163 et 165) ni au droit d’auteur prévu à l’article 168 (droit d’auteur de certaines organisations internationales).

Durée du droit d’auteur

Durée du droit d’auteur sur les d’œuvres littéraires, dramatiques, musicales ou artistiques

12. 1) Sous réserve des dispositions suivantes du présent article, le droit d’auteur sur une oeuvre littéraire, dramatique, musicale ou artistique prend fin à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle l’auteur est décédé.

2) Si l’oeuvre est d’auteur inconnu, le droit d’auteur prend fin à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle elle a pour la première fois été rendue accessible au public; les dispositions de l’alinéa 1) ne sont pas applicables si l’identité de l’auteur vient à être connue avant l’expiration de cette période.

A cet effet, on entend par “rendre accessible au public”

a) par rapport à une oeuvre littéraire, dramatique ou musicale i) la représenter ou l’exécuter en public, ou

ii) la radiodiffuser ou la programmer dans un service de câblodistribution;

b) par rapport à une oeuvre artistique i) l’exposer en public,

ii) projeter en public un film dans lequel elle figure, ou

iii) la programmer dans une émission de radiodiffusion ou dans un service de câblodistribution;

toutefois, aucun acte non autorisé n’est pris en compte pour déterminer de façon générale aux fins du présent alinéa si une oeuvre a été rendue accessible au public.

3) S’il s’agit d’une oeuvre créée par ordinateur, aucune des dispositions qui précèdent n’est applicable et le droit d’auteur prend fin à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle l’oeuvre a été créée.

4) S’agissant d’une oeuvre de collaboration

a) à l’alinéa 1), la mention du décès de l’auteur doit être interprétée i) si l’identité de tous les auteurs est connue, comme désignant le décès

du dernier vivant d’entre eux, et

ii) si l’identité d’un ou de plusieurs auteurs est connue et celle d’un ou plusieurs autres ne l’est pas, comme désignant le décès du dernier vivant des auteurs dont l’identité est connue; et

b) à l’alinéa 2), la mention du cas où l’identité de l’auteur vient à être connue doit être interprétée comme visant le cas où l’identité de l’un des auteurs vient à être connue.

5) Les dispositions du présent article ne sont pas applicables au droit d’auteur reconnu à la Couronne ou aux Assemblées parlementaires (voir les articles 163 à 166) ni

au droit d’auteur prévu à l’article 168 (droit d’auteur de certaines organisations internationales).

Durée du droit d’auteur sur les enregistrements sonores et les films

13. 1) Le droit d’auteur sur un enregistrement sonore ou un film prend fin a) à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au

cours de laquelle l’enregistrement ou le film a été réalisé, ou

b) si l’enregistrement ou le film est mis en circulation avant l’expiration de cette période, 50 ans à compter de la fin de l’année civile au cours de laquelle il a été mis en circulation.

2) Un enregistrement sonore ou un film est “mis en circulation” lorsque

a) il est pour la première fois publié, radiodiffusé ou programmé dans un service de câblodistribution, ou

b) s’agissant d’un film ou de la piste sonore d’un film, le film est pour la première fois projeté en public:

toutefois, aucun acte non autorisé n’est pris en compte pour déterminer si une oeuvre a été mise en circulation.

Durée du droit d’auteur sur les émissions de radiodiffusion et les programmes distribués par câble

14. 1) Le droit d’auteur sur une émission de radiodiffusion ou un programme distribué par câble prend fin à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle l’émission a été réalisée ou le programme inclus dans un service de câblodistribution.

2) Le droit d’auteur sur la rediffusion d’une émission de radiodiffusion ou d’un programme distribué par câble prend fin en même temps que le droit d’auteur sur l’émission ou le programme original; en conséquence, la rediffusion d’une émission ou d’un programme distribué par câble qui est radiodiffusée ou programmée dans un service de câblodistribution après l’expiration du droit d’auteur sur l’émission ou le programme original ne fait naître aucun droit d’auteur.

3) On entend par rediffusion d’une émission ou d’un programme distribué par câble la reprise d’une émission ayant déjà été diffusée ou d’un programme ayant déjà été inclus dans un service de câblodistribution.

Durée du droit d’auteur sur la présentation typographique des éditions publiées

15. Le droit d’auteur sur la présentation typographique d’une édition publiée prend fin à l’expiration d’une période de 25 ans à compter de la fin de l’année civile au cours de laquelle l’édition a été publiée pour la première fois.

CHAPITRE II DROITS DU TITULAIRE DU DROIT D’AUTEUR

Actes réservés au titre du droit d’auteur

Actes réservés au titre du droit d’auteur sur une oeuvre

16. 1) Le titulaire du droit d’auteur sur une oeuvre a, conformément aux dispositions suivantes du présent chapitre, le droit exclusif d’accomplir les actes suivants au Royaume-Uni

a) reproduire ou copier l’oeuvre (voir l’article17), b) diffuser des copies ou exemplaires de l’oeuvre dans le public (voir

l’article 18).

c) représenter ou exécuter, projeter ou diffuser l’oeuvre en public (voir l’article 19),

d) radiodiffuser l’oeuvre ou la programmer dans un service de câblodistribution (voir l’article 20).

e) faire une adaptation de l’oeuvre ou accomplir l’un des actes précités par rapport à une adaptation (voir l’article 21),

et dans la présente partie ces actes sont dénommés “actes réservés au titre du droit d’auteur”.

2) Porte atteinte au droit d’auteur sur une oeuvre quiconque, sans l’autorisation du titulaire du droit d’auteur, accomplit ou autorise autrui à accomplir un acte réservé au titre du droit d’auteur.

3) Dans la présente partie, toute mention de l’accomplissement d’un acte réservé au titre du droit d’auteur afférent à une oeuvre doit être interprétée comme désignant l’accomplissement de cet acte

a) par rapport à l’ensemble ou à une partie importante de l’oeuvre, et b) directement ou indirectement,

et le fait qu’un acte intermédiaire porte lui-même atteinte au droit d’auteur n’entre pas en ligne de compte en l’occurrence.

4) Le présent chapitre est applicable sous réserve

a) des dispositions du chapitre III (actes autorisés par rapport à des d’œuvres protégées), et

b) des dispositions du chapitre VII (dispositions concernant les licences en matière de droit d’auteur).

Atteinte au droit d’auteur par voie de copie ou reproduction

17. 1) La copie ou la reproduction de l’oeuvre est un acte réservé au titre du droit d’auteur sur toute catégorie d’œuvres protégées; dans la présente partie, toute mention de la copie ou de la reproduction et des copies ou exemplaires doit être interprétée de la façon suivante.

2) Par rapport à une oeuvre littéraire, dramatique, musicale ou artistique, on entend par copie ou reproduction le fait de reproduire l’oeuvre sous toute forme matérielle.

Cet acte s’applique notamment au stockage de l’oeuvre sur un support quelconque à l’aide de moyens électroniques.

3) Par rapport à une oeuvre artistique, la copie ou reproduction comprend la réalisation d’une copie à trois dimensions d’une oeuvre à deux dimensions ainsi que d’une copie à deux dimensions d’une oeuvre à trois dimensions.

4) Par rapport à un film, à une émission de télévision ou à un programme distribué par câble, la copie ou reproduction comprend la réalisation d’une photographie de l’ensemble ou d’une partie importante de toute image faisant partie du film, de l’émission ou du programme.

5) Par rapport à la présentation typographique d’une édition publiée, il faut entendre par copie ou reproduction l’établissement d’un fac-similé de la présentation.

6) Par rapport à une oeuvre de quelque catégorie que ce soit, la copie ou reproduction comprend notamment la réalisation de copies ou d’exemplaires éphémères ou accessoires par rapport à une autre utilisation de l’oeuvre.

Atteinte au droit d’auteur tenant à la diffusion de copies ou d’exemplaires dans le public

18. 1) La diffusion dans le public de copies ou d’exemplaires de l’oeuvre est un acte réservé au titre du droit d’auteur sur toute catégorie d’œuvres protégées.

2) Dans la présente partie, toute mention de la diffusion de copies ou d’exemplaires d’une oeuvre dans le public vise l’acte consistant à mettre en circulation au Royaume-Uni ou ailleurs des copies ou exemplaires qui ne l’avaient encore jamais été et non

a) la distribution, la vente, la location ou le prêt ultérieur de ces copies ou exemplaires, ni

b) l’importation ultérieure de ces copies ou exemplaires au Royaume-Uni; toutefois, par rapport à des enregistrements sonores, des films et des programmes

d’ordinateur, l’acte réservé consistant à diffuser des copies dans le public comprend toute location de ces copies au public.

Atteinte au droit d’auteur résultant de la représentation ou exécution, de la projection ou de la diffusion d’une oeuvre en public

19. 1) La représentation ou l’exécution publique de l’oeuvre est un acte réservé au titre du droit d’auteur sur une oeuvre littéraire, dramatique ou musicale.

2) Dans la présente partie, les termes “représentation ou exécution”, par rapport à une oeuvre, désignent aussi,

a) s’agissant de conférences, d’allocutions, de discours et de sermons, le fait de les prononcer, et

b) en général, tout mode de présentation visuelle ou acoustique, y compris la présentation de l’oeuvre au moyen d’un enregistrement sonore, d’un film, d’une émission de radiodiffusion ou d’un programme distribué par câble.

3) La diffusion ou la projection publique de l’oeuvre est un acte réservé au titre du droit d’auteur sur un enregistrement sonore, un film, une émission de radiodiffusion ou un programme distribué par câble.

4) En cas d’atteinte au droit d’auteur sur une oeuvre résultant de la représentation ou exécution, de la diffusion ou de la projection publique de celle-ci au moyen d’un appareil destiné à la réception d’images visuelles et de sons acheminés à l’aide de moyens électroniques, la personne par qui les images ou sons sont envoyés et, s’agissant d’une représentation ou exécution, les artistes interprètes ou exécutants, ne sont pas considérés comme responsables.

Atteinte au droit d’auteur résultant de la radiodiffusion d’une oeuvre ou de sa programmation dans un service de câblodistribution

20. La radiodiffusion de l’oeuvre ou sa programmation dans un service de câblodistribution est un acte réservé au titre du droit d’auteur sur

a) une oeuvre littéraire, dramatique, musicale ou artistique, b) un enregistrement sonore ou un film, ou c) une émission de radiodiffusion ou un programme distribué par câble.

Atteinte au droit d’auteur résultant d’une adaptation ou d’un acte accompli par rapport à une adaptation

21. 1) La réalisation d’une adaptation de l’oeuvre est un acte réservé au titre du droit d’auteur sur une oeuvre littéraire, dramatique ou musicale.

A cet effet, une adaptation existe dès lors qu’elle est consignée, par écrit ou autrement.

2) L’accomplissement de tout acte mentionné aux articles 17 à 20 ou à l’alinéa 1) ci-dessus, par rapport à une adaptation de l’oeuvre, est aussi un acte réservé au titre du droit d’auteur sur une oeuvre littéraire, dramatique ou musicale.

A cette fin, il est sans importance que l’adaptation ait été consignée, par écrit ou autrement, au moment où l’acte a été accompli.

3) Dans la présente partie, on entend par “adaptation”

a) par rapport à une oeuvre littéraire ou dramatique, i) une traduction de l’oeuvre;

ii) une version non dramatique d’une oeuvre dramatique ou, selon le cas, une version dramatique d’une oeuvre non dramatique;

iii) une version de l’oeuvre dans laquelle la narration ou l’action sont retracées uniquement ou principalement au moyen d’images sous une forme se prêtant à la reproduction dans un livre, ou dans un journal, un magazine ou un périodique analogue;

b) par rapport à une oeuvre musicale, un arrangement ou une transcription de l’oeuvre.

4) Par rapport à un programme d’ordinateur, le terme “traduction” désigne aussi une version du programme dans laquelle celui-ci est converti dans le langage ou le code ou à partir du langage ou du code de l’ordinateur, ou dans un langage ou code informatique différent, autrement que de façon accessoire au cours du déroulement du programme.

5) Les dispositions du présent article ne sauraient avoir aucune incidence sur la portée de la définition de la copie ou reproduction d’une oeuvre.

Atteinte indirecte au droit d’auteur

Atteinte indirecte: importation de copies ou d’exemplaires contrefaits

22. Porte atteinte au droit d’auteur quiconque, sans l’autorisation du titulaire du droit d’auteur, importe au Royaume-Uni, si ce n’est pour son usage personnel et privé, une copie ou un exemplaire contrefait de l’oeuvre en sachant ou en ayant des raisons de penser qu’il s’agit d’un objet de cette nature.

Atteinte indirecte: détention de copies ou d’exemplaires conterfaits et actes accomplis en relation avec ceux-ci

23. Porte atteinte au droit d’auteur sur une oeuvre quiconque, sans l’autorisation du titulaire du droit d’auteur,

a) a en sa possession dans le cadre d’une activité commerciale, b) vend ou loue, ou propose ou présente en vue de la vente ou de la location, c) expose en public ou distribue dans le cadre d’une activité commerciale, ou d) distribue, à des fins non commerciales, au point de porter préjudice au

titulaire du droit d’auteur,

une copie ou un exemplaire contrefait de l’oeuvre en sachant ou en ayant des raisons de penser qu’il s’agit d’un objet de cette nature.

Atteinte indirecte: mise à disposition des moyens de faire des copies ou exemplaires contrefaits

24. 1) Porte atteinte au droit d’auteur sur une oeuvre quiconque, sans l’autorisation du titulaire du droit d’auteur,

a) fabrique, b) importe au Royaume-Uni, c) a en sa possession dans le cadre d’une activité commerciale, ou d) vend ou loue, ou propose ou présente en vue de la vente ou de la location,

un objet conçu pour faire des copies ou exemplaires de cette oeuvre ou spécialement adapté à cet effet, en sachant ou en ayant des raisons de penser qu’il sera utilisé pour faire des copies ou exemplaires contrefaits.

2) Porte atteinte au droit d’auteur sur une oeuvre quiconque, sans l’autorisation du titulaire du droit d’auteur, transmet l’oeuvre au moyen d’un système de télécommunication (autrement que par radiodiffusion ou programmation dans un service de câblodistribution) en sachant ou en ayant des raisons de penser que des copies ou exemplaires contrefaits de l’oeuvre seront réalisés après réception de la transmission au Royaume-Uni ou ailleurs.

Atteinte indirecte: autorisation d’utiliser des locaux pour des représentations ou exécutions illicites

25. 1) Lorsqu’une représentation ou exécution dans un lieu de divertissement public porte atteinte au droit d’auteur sur une oeuvre littéraire, dramatique ou musicale, toute personne ayant donné l’autorisation d’utiliser ce lieu pour la représentation ou exécution est également tenue pour responsable, à moins que, ce faisant, elle n’ait eu des raisons valables de penser que la représentation ou exécution ne porterait pas atteinte au droit d’auteur.

2) Aux fins du présent article, les termes “lieu de divertissement public” désignent aussi des locaux qui sont essentiellement affectés à un autre but mais qui sont occasionnellement loués à des fins de divertissement public.

Atteinte indirecte: mise à disposition d’appareils permettant des représentations ou exécutions illicites, etc.

26. 1) En cas d’atteinte au droit d’auteur sur une oeuvre résultant de la représentation ou de l’exécution, de la diffusion ou de la projection publique de celle-ci, au moyen d’un appareil permettant de

a) diffuser des enregistrements sonores, b) projeter des films, ou c) recevoir des images visuelles ou des sons acheminés à l’aide de moyens

électroniques,

les personnes suivantes sont également tenues pour responsables.

2) Toute personne qui a fourni l’appareil ou toute partie importante de celui-ci est tenue pour responsable si, ce faisant,

a) elle savait ou avait des raisons de penser que cet appareil pouvait être utilisé pour porter atteinte au droit d’auteur, ou

b) s’agissant d’un appareil qui est normalement utilisé pour la représentation ou l’exécution, la diffusion ou la projection publique d’une oeuvre, elle n’avait pas de raisons valables de penser qu’il ne serait pas utilisé de manière à porter atteinte au droit d’auteur.

3) Tout occupant des locaux qui a donné l’autorisation d’installer l’appareil dans ceux-ci est tenu pour responsable si, en donnant cette autorisation, il savait ou avait des raisons de penser que l’appareil était de nature à être utilisé de manière à porter atteinte au droit d’auteur.

4) Toute personne ayant fourni une copie d’un enregistrement sonore ou d’un film ayant servi à porter atteinte au droit d’auteur est tenue pour responsable si, ce faisant, elle savait ou avait des raisons de penser que la copie fournie, ou toute copie réalisée directement ou indirectement à partir de celle-ci, était de nature à être utilisée de manière à porter atteinte au droit d’auteur.

Copies ou exemplaires contrefaits

Définition

27. 1) Dans la présente partie, l’expression “copie ou exemplaire contrefait”, par rapport à une oeuvre protégée, doit être interprétée conformément aux dispositions du présent article.

2) Un objet est une copie ou un exemplaire contrefait si sa fabrication ou sa réalisation a constitué une atteinte au droit d’auteur sur l’oeuvre en question.

3) Un objet est aussi une copie ou un exemplaire contrefait si

a) il a été importé, ou il et proposé de l’importer, au Royaume-Uni, et b) sa réalisation ou sa fabrication au Royaume-Uni aurait constitué une atteinte

au droit d’auteur sur l’oeuvre en question ou une violation d’un contrat de licence exclusive relatif à cette oeuvre.

4) Lorsque, au cours d’une procédure, la question se pose de savoir si un objet est une copie ou un exemplaire contrefait et s’il est démontré

a) que cet objet est une copie de l’oeuvre, et b) que l’oeuvre est protégée ou a été protégée à un moment quelconque,

l’objet est présumé, jusqu’à preuve du contraire, avoir été fabriqué pendant la période durant laquelle l’oeuvre était protégée.

5) Aucune disposition de l’alinéa 3) ne doit être interprétée comme s’appliquant à un objet qui peut licitement être importé au Royaume-Uni en vertu d’un droit communautaire en vigueur au sens de l’article 2.1) de la loi de 1972 sur les Communautés européennes.

6) Dans la présente partie, l’expression “copie ou exemplaire contrefait” désigne aussi une copie ou un exemplaire assimilé à une copie ou à un exemplaire contrefait en vertu des dispositions suivantes

article 32.5) (copies faites à des fins didactiques ou en vue d’un examen),

article 35.3) (enregistrements réalisés par des établissements d’enseignement pour les besoins de leurs activités),

article 36.5) (reproductions reprographiques réalisées par des établissements d’enseignement à des fins pédagogiques),

article 37.3)b) (copies établies par un bibliothécaire ou un archiviste sur la foi d’une déclaration mensongère),

article 56.2) (copies, adaptations, etc., d’une oeuvre sous forme électronique conservées après cession de l’exemplaire principal),

article 63.2) (copies faites pour annoncer la vente d’une oeuvre artistique),

article 68.4) (copies faites aux fins de la radiodiffusion ou d’un programme distribué par câble), ou

de toute disposition d’une ordonnance édictée en vertu de l’article141(licence légale pour certaines reproductions reprographiques au sein des établissements d’enseignement).

CHAPITRE III ACTES AUTORISÉS PAR RAPPORT À DES OEUVRES PROTÉGÉES

Dispositions liminaires

Dispositions liminaires

28. 1) Les dispositions du présent chapitre précisent les actes qui peuvent être accomplis par rapport à des d’œuvres protégées, malgré l’existence d’un droit d’auteur; elles ont trait uniquement à la question des atteintes au droit d’auteur et n’ont d’incidence sur aucun autre droit ou obligation imposant des restrictions quant à l’accomplissement des actes considérés.

2) Lorsqu’il est prévu, aux termes des dispositions du présent chapitre, qu’un acte ne porte pas atteinte au droit d’auteur, ou peut être accompli sans porter atteinte au droit d’auteur, et qu’aucune catégorie particulière d’œuvres protégées n’est mentionnée, l’acte en question ne porte en aucun cas atteinte au droit d’auteur sur une oeuvre, quelle que soit la catégorie à laquelle elle appartient.

3) Les dispositions du présent chapitre concernant les catégories d’actes pouvant être accomplis sans porter atteinte au droit d’auteur n’ont aucune incidence sur la portée des actes réservés au titre du droit d’auteur sur toute catégorie d’œuvres

4) Les dispositions du présent chapitre doivent être interprétées indépendamment les unes des autres, de sorte que le fait qu’un acte ne relève pas du champ d’application d’une disposition donnée ne signifie pas qu’il n’est pas prévu par une autre disposition.

Dispositions générales

Recherche et étude personnelle

29. 1) Un acte loyal accompli à l’égard d’une oeuvre littéraire, dramatique, musicale ou artistique à des fins de recherche ou d’étude personnelle ne porte pas atteinte au droit d’auteur sur cette oeuvre ou, s’agissant d’une édition publiée, sur la présentation typographique.

2) Un acte loyal accompli à l’égard de la présentation typographique et d’une édition publiée aux fins mentionnées à l’alinéa 1) ne porte en aucun cas atteinte au droit d’auteur sur cette présentation.

3) L’établissement de copies, par une autre personne que le chercheur ou l’étudiant lui-même, ne constitue pas un acte loyal si

a) s’agissant d’un bibliothécaire ou d’une personne agissant en son nom, l’intéressé accomplit un acte qui ne serait pas autorisé aux termes des dispositions réglementaires adoptées en vertu de l’article 40 pour l’application de l’article38 ou 39 (articles ou parties d’œuvres publiées: restrictions touchant à la reproduction en multiples exemplaires d’un même document), ou

b) dans tout autre cas, la personne qui établit ces copies sait ou a des raisons de penser que des copies portant pratiquement sur le même texte seront de ce fait remises à plus d’une personne, pratiquement au même moment et dans le même but.

Critique et comptes rendus d’événements d’actualité

30. 1) Un acte loyal accompli à l’égard d’une oeuvre à des fins de critique ou de compte rendu de cette oeuvre ou d’une autre oeuvre ou de la représentation ou exécution d’une oeuvre ne porte en aucun cas atteinte au droit d’auteur sur l’oeuvre s’il est accompagné d’une mention de l’oeuvre suffisamment explicite.

2) Un acte loyal accompli à l’égard d’une oeuvre (à l’exclusion d’une photographie) afin de rendre compte d’événements d’actualité ne porte en aucun cas atteinte au droit d’auteur sur cette oeuvre s’il est accompagné d’une mention de l’oeuvre suffisamment explicite (exception faite des cas visés à l’alinéa 3)).

3) Aucune mention n’est exigée en ce qui concerne le compte rendu d’événements d’actualité au moyen d’un enregistrement sonore, d’un film, d’une émission de radiodiffusion ou d’un programme distribué par câble.

Communication fortuite de matériel protégé

31. 1) Ne porte pas atteinte au droit d’auteur sur une oeuvre le fait que celle-ci figure fortuitement dans une oeuvre artistique, un enregistrement sonore, un film, une émission de radiodiffusion ou un programme distribué par câble.

2) Ne porte pas non plus atteinte au droit d’auteur la mise en circulation dans le public de copies ou d’exemplaires ou la diffusion, la projection, la radiodiffusion ou la programmation dans un service de câblodistribution de tout élément qui, en vertu des dispositions de l’alinéa 1), a pu être réalisé sans porter atteinte au droit d’auteur.

3) Une oeuvre musicale, un texte parlé ou chanté avec de la musique ou toute partie d’un enregistrement sonore, d’une émission de radiodiffusion ou d’un programme distribué par câble comportant une oeuvre musicale ou un texte de cette nature ne sont pas considérés comme figurant fortuitement dans une autre oeuvre s’ils ont été délibérément repris dans celle—ci.

Enseignement

Actes accomplis à des fins didactiques ou en vue d’un examen

32. 1) La reproduction d’une oeuvre littéraire, dramatique, musicale ou artistique dans le cadre d’activités didactiques ou de la préparation de ces activités ne porte pas atteinte au droit d’auteur sur cette oeuvre si elle est faite

a) par la personne qui dispense l’enseignement ou par celle qui le reçoit, et b) sans avoir recours à un procédé reprographique. 2) La reproduction d’un enregistrement sonore, d’un film, d’une émission de

radiodiffusion ou d’un programme distribué par câble dans un film ou dans la bande sonore d’un film réalisé dans le cadre d’activités didactiques ou de la préparation de ces activités ne porte pas atteinte au droit d’auteur sur l’enregistrement, le film, l’émission ou le programme en question si elle est réalisée par la personne qui dispense l’enseignement ou par celle qui le reçoit.

3) Aucun acte accompli en vue d’un examen, à l’occasion de l’élaboration des questions, de leur communication aux candidats et des réponses données par ces derniers, ne porte atteinte au droit d’auteur.

4) Les dispositions de l’alinéa 3) ne sont pas applicables à une reproduction reprographique d’une oeuvre musicale destinée à être utilisée par un candidat à un examen pour l’exécution de l’oeuvre.

5) Une copie ou un exemplaire qui serait contrefait s’il n’était établi en application du présent article et qui est ensuite exploité d’une autre manière est assimilé à une copie ou à un exemplaire contrefait aux fins de cette exploitation si celle—ci porte atteinte au droit d’auteur à tous autres égards par la suite.

A cette fin, on entend par “exploitation” la vente ou la location, l’offre en vente ou en location ou la présentation en vue de la vente ou de la location.

Anthologies destinées à être utilisées dans l’enseignement

33. 1) L’insertion d’un passage succinct d’une oeuvre littéraire ou dramatique publiée dans une collection qui

a) est destinée à l’usage d’établissements d’enseignement et qui est ainsi présentée dans son titre et dans toute annonce publiée par l’éditeur ou en son nom, et

b) est essentiellement constituée d’éléments non protégés, ne porte pas atteinte au droit d’auteur sur l’oeuvre si celle—ci n’est pas elle—même destinée à l’usage de ces établissements et si l’insertion est accompagnée d’une mention suffisamment explicite de ladite oeuvre.

2) Les dispositions de l’alinéa 1) n’autorisent pas l’insertion de plus de deux extraits d’œuvres protégées du même auteur dans des collections publiées par le même éditeur au cours de toute période de cinq ans.

3) Par rapport à un passage donné, la mention faite à l’alinéa 2) des extraits d’œuvres du même auteur

a) doit être interprétée comme désignant aussi des extraits d’œuvres créées par l’intéressé en collaboration avec un autre auteur, et

b) si le passage en question est tiré d’une telle oeuvre, doit être interprétée comme désignant aussi des extraits d’œuvres de l’un quelconque des auteurs, qu’elles aient ou non été créées en collaboration avec un autre auteur.

4) Dans le présent article, les mentions de l’utilisation d’une oeuvre dans un établissement d’enseignement visent toute utilisation aux fins des activités pédagogiques de cet établissement.

Représentation ou exécution, diffusion ou projection d’une oeuvre dans le cadre des activités d’un établissement d’enseignement

34. 1) La représentation ou l’exécution d’une oeuvre littéraire, dramatique ou musicale devant un auditoire constitué d’enseignants et d’élèves d’un établissement d’enseignement et d’autres personnes directement intéressées par les activités de l’établissement

a) par un enseignant ou un élève dans le cadre des activités de l’établissement, ou

b) par toute personne au sein de l’établissement, à des fins didactiques, ne constitue pas une représentation ou exécution publique de nature à porter atteinte au droit d’auteur.

2) La diffusion ou la projection à des fins didactiques, devant un auditoire de cette nature et au sein d’un établissement d’enseignement, d’un enregistrement sonore. d’un film. d’une émission de radiodiffusion ou d’un programme distribué par câble ne constitue pas une diffusion ou projection publique de l’oeuvre de nature à porter atteinte au droit d’auteur.

3) A cette fin, une personne n’est pas considérée comme directement intéressée par les activités de l’établissement d’enseignement du seul fait qu’elle est l’un des parents d’un élève de cet établissement.

Enregistrement d’émissions de radiodiffusion et de programmes distribués par câble par des établissements d’enseignement

35. 1) Les établissements d’enseignement peuvent réaliser ou faire réaliser, aux fins de leurs activités, un enregistrement d’une émission de radiodiffusion ou d’un programme distribué par câble ou une copie de cet enregistrement sans porter atteinte au droit d’auteur sur l’émission ou le programme ni sur aucune oeuvre comprise dans ceux—ci.

2) Le présent article n’est pas applicable si ou dans la mesure où il existe un barème de licences certifié aux fins du présent article en vertu de l’article143.

3) Une copie qui serait contrefaite si elle n’était établie en application du présent article et qui est ensuite exploitée d’une autre manière est assimilée à une copie

contrefaite aux fins de cette exploitation si celle—ci porte atteinte au droit d’auteur à tous autres égards par la suite.

A cette fin, on entend par “exploitation” la vente ou la location, l’offre en vente ou en location ou la présentation en vue de la vente ou de la location.

Reproduction reprographique, par les établissements d’enseignement, de passages d’œuvres publiées

36. 1) Dans la mesure autorisée aux termes du présent article, les établissements d’enseignement peuvent établir ou faire établir, à des fins didactiques, des reproductions reprographiques de passages d’œuvres littéraires, dramatiques ou musicales publiées sans nullement porter atteinte au droit d’auteur sur l’oeuvre ou la présentation typographique.

2) La proportion d’une oeuvre donnée reproduite par un établissement ou pour son compte en vertu du présent article au cours d’un trimestre donné (à savoir au cours de toute période allant du 1er janvier au 31 mars, du 1er avril au 30 juin, du 1er juillet au 30 septembre ou du 1er octobre au 31 décembre) ne doit pas dépasser un pour cent.

3) Aucune reproduction n’est autorisée en vertu du présent article si, ou dans la mesure où, elle peut être autorisée par voie de licence et si la personne qui établit les reproductions avait ou était censée avoir connaissance de ce fait.

4) Les conditions d’une licence autorisant un établissement d’enseignement à établir, à des fins didactiques, des reproductions reprographiques de passages d’œuvres littéraires, dramatiques ou musicales publiées sont dépourvues d’effet dans la mesure où elles tendent à ramener le pourcentage d’une oeuvre dont la reproduction est autorisée (à titre onéreux ou gratuit) à un niveau inférieur à celui qui serait autorisé en vertu du présent article.

5) Une reproduction qui constituerait une copie ou un exemplaire contrefait si elle n’était établie en application du présent article et qui est ensuite exploitée d’une autre manière est assimilée à une copie ou à un exemplaire contrefait aux fins de cette exploitation si celle—ci porte atteinte au droit d’auteur à tous autres égards par la suite.

A cette fin, on entend par “exploitation” la vente ou la location, l’offre en vente ou en location ou la présentation en vue de la vente ou de la location.

Bibliothèques et services d’archives

Bibliothèques et services d’archives: dispositions liminaires

37. 1) Dans les articles 38 à 43(copies établies par les bibliothécaires et les archivistes)

a) dans toute disposition, l’expression “bibliothèque ou un service d’archives désigné” s’entend d’une bibliothèque ou d’un service d’archives relevant d’une catégorie définie à cet effet par voie réglementaire par le ministre; et

b) dans toute disposition, la mention des conditions prescrites doit être interprétée comme désignant les conditions définies selon les mêmes modalités.

2) Les dispositions réglementaires (regulations) peuvent prévoir que, lorsqu’un bibliothécaire ou un archiviste est tenu de réunir des preuves concluantes sur un point donné avant de faire ou de fournir une copie d’une oeuvre.

a) il peut se fonder sur une déclaration signée établie sur ce point précis par la personne qui demande la copie, à moins qu’à sa connaissance cette déclaration ne soit mensongère sur un point particulier, et

b) dans les cas qui pourront être prévus, il doit s’abstenir d’établir ou de fournir une copie en l’absence d’une déclaration signée établie en la forme qui pourra être prescrite.

3) Lorsqu’une personne demande une copie en faisant une déclaration mensongère sur un point particulier et se voit remettre une copie qui aurait constitué une copie contrefait si elle l’avait faite elle—même.

a) cette personne est coupable d’atteinte au droit d’auteur au même titre que si elle avait fait elle—même la copie, et

b) la copie est réputée contrefaite. 4) Les dispositions différentes peuvent être établies par voie réglementaire pour

différentes catégories de bibliothèques ou de services d’archives et à différentes fins.

5) Les dispositions réglementaires sont susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

6) Dans le présent article et dans les articles 38à 43, toute mention du bibliothécaire ou de l’archiviste vise aussi une personne agissant en son nom.

Copies établies par les bibliothécaires: articles de périodiques

38. 1) Le bibliothécaire d’une bibliothèque désignée peut, si les conditions prescrites sont réunies, faire et fournir une copie d’un article paru dans une publication périodique sans nullement porter atteinte au droit d’auteur afférent au texte, aux illustrations qui l’accompagnent ou à la présentation typographique.

2) Les conditions prescrites sont notamment les suivants

a) les copies ne sont remises qu’aux personnes qui établissent de manière jugée concluante par le bibliothécaire que ces copies leur sont nécessaires à des fins de recherche ou d’étude personnelle et qu’elles ne les utiliseront à aucune autre fin;

b) il ne doit en aucun cas être remis à une même personne plus d’une copie du même article ni des copies de plus d’un article paru dans un même numéro d’une publication périodique; et

c) les personnes à qui les copies sont remises sont tenues de verser en contrepartie un montant qui ne doit pas être inférieur aux frais d’établissement de ces copies (y compris une contribution aux frais généraux de fonctionnement de la bibliothèque).

Copies établies par les bibliothécaires: parties d’œuvres publiées

39. 1) Le bibliothécaire d’une bibliothèque désignée peut, si les conditions prescrites sont réunies, faire et fournir une copie d’une partie d’une oeuvre littéraire, dramatique ou musicale (à l’exclusion d’un article paru dans une publication périodique) figurant dans une édition publiée sans nullement porter atteinte au droit d’auteur afférent à l’oeuvre, aux illustrations qui l’accompagnent ou à la présentation typographique.

2) Les conditions prescrites sont notamment les suivantes

b) il ne doit en aucun cas être remis à une même personne plus d’une copie du même article ni une copie représentant plus qu’une fraction raisonnable d’une oeuvre; et

Restrictions touchant à la reproduction en multiples exemplaires d’un même document

40. 1) Les dispositions réglementaires édictées aux fins des articles 38 et 39 (copies, par les bibliothécaires, d’articles ou de parties d’œuvres publiées) devront préciser qu’une copie ne peut être remise qu’à une personne établissant de façon jugée concluante par le bibliothécaire que sa demande n’est nullement liée à une demande comparable faite par un tiers.

2) Les dispositions réglementaires peuvent prévoir

a) que deux demandes doivent être considérées comme comparables si elles visent à obtenir. pratiquement au même moment et dans le même but, des copies de documents pratiquement identiques: et

b) que des demandes présentées par différentes personnes doivent être considérées comme apparentées si ces personnes suivent au même moment et au même endroit l’enseignement auquel se rapportent les documents demandés.

Copies établies par les bibliothécaires: fourniture de copies à d’autres bibliothèques

41. 1) Le bibliothécaire d’une bibliothèque désignée peut, si les conditions prescrites sont réunies, faire et fournir à une autre bibliothèque désignée une copie

a) d’un article paru dans une publication périodique, ou b) de la totalité ou d’une partie d’une édition publiée d’une oeuvre littéraire,

dramatique ou musicale.

sans nullement porter atteinte au droit d’auteur afférent au texte de l’article ou, selon les cas, à l’oeuvre, aux illustrations qui l’accompagnent ou à la présentation typographique.

2) Les dispositions de l’alinéa 1)b) ne sont pas applicables si, au moment de l’établissement de la copie, le bibliothécaire connaissait, ou pouvait déterminer après des recherches suffisantes le nom et l’adresse d’une personne habilitée à autoriser l’établissement de la copie.

Copies établies par les bibliothécaires ou les archivistes: remplacement d’exemplaires d’œuvres

42. 1) Le bibliothécaire ou l’archiviste d’une bibliothèque ou d’un service d’archives désigné peut, si les conditions prescrites sont réunies, faire une copie de tout élément appartenant au fonds permanent de la bibliothèque ou du service d’archives

a) afin de conserver ou de remplacer cet élément en ajoutant ou en substituant la copie dans le fonds permanent, ou

b) afin de remplacer dans le fonds permanent d’une autre bibliothèque ou d’un autre service d’archives désigné un élément ayant été perdu, détruit ou endommagé,

sans nullement porter atteinte au droit d’auteur afférent à une oeuvre littéraire, dramatique ou musicale, aux illustrations accompagnant cette oeuvre ou, s’agissant d’une édition publiée, à la présentation typographique.

2) Les conditions prescrites tendront notamment à limiter l’établissement de copies au cas où l’acquisition d’un exemplaire de l’élément en question afin de répondre au but considéré ne serait pas normalement possible.

Copies établies par les bibliothécaires ou les archivistes: certaines d’œuvres non publiées

43. 1) Le bibliothécaire ou l’archiviste d’une bibliothèque ou d’un service d’archives désigné peut, si les conditions prescrites sont réunies, faire et fournir une copie de la totalité ou d’une partie d’une oeuvre littéraire, dramatique ou musicale à partir d’un document conservé par la bibliothèque ou le service sans nullement porter atteinte au droit d’auteur afférent à l’oeuvre ou aux illustrations qui accompagnent celle—ci.

2) Les dispositions du présent article ne sont pas applicables si

a) l’oeuvre avait été publiée avant que le document soit déposé à la bibliothèque ou au service d’archives, ou

b) le titulaire du droit d’auteur a interdit la reproduction de l’oeuvre, et, au moment où la copie est établie, le bibliothécaire ou l’archiviste avait, ou était censé avoir, connaissance de ce fait.

3) Les conditions prescrites sont notamment les suivantes

b) il ne doit en aucun cas être remis à une même personne plus d’une copie d’une même document; et

Copie d’une oeuvre exigée en cas d’exportation

44. Si un article d’importance ou d’intérêt culturel ou historique ne peut être licitement exporté du Royaume-Uni qu’après qu’une copie en a été établie et déposée auprès d’une bibliothèque ou d’un service d’archives approprié, l’établissement de cette copie ne porte pas atteinte au droit d’auteur.

Administration publique

Procédures parlementaires et judiciaires

45. 1) Aucun acte accompli aux fins d’une procédure parlementaire ou judiciaire ne porte atteinte au droit d’auteur.

2) Aucun acte accompli en vue de rendre compte d’une telle procédure ne porte atteinte au droit d’auteur; la présente disposition ne doit cependant pas être interprétée comme autorisant la reproduction d’une oeuvre qui est elle-même un compte rendu publié des débats.

Commissions royales et enquêtes légales

46. 1) Aucun acte accompli aux fins de la procédure d’une commission royale ou d’une enquête légale ne porte atteinte au droit d’auteur.

2) Aucun acte accompli en vue de rendre compte d’une telle procédure de caractère public ne porte atteinte au droit d’auteur; la présente disposition ne doit cependant pas être interprétée comme autorisant la reproduction d’une oeuvre qui est elle-même un compte rendu publié des débats.

3) La diffusion publique de copies ou d’exemplaires d’un compte rendu d’une commission royale ou d’une enquête légale comportant une oeuvre ou des extraits d’une oeuvre ne porte pas atteinte au droit d’auteur sur cette oeuvre.

4) Dans le présent article

“commission royale” s’entend aussi d’une commission désignée par le ministre pour l’Irlande du Nord en vertu des prérogatives de Sa Majesté qui lui sont déléguées aux termes de l’article 7.2) de la loi constitutionnelle de l’Irlande du Nord de 1973; et

“enquête légale” s’entend d’une enquête ou de recherches menées conformément à une obligation imposée ou à un pouvoir conféré par un texte en vigueur ou en vertu de celui- ci.

Documents mis à la disposition du public pour consultation ou consignés dans un registre officiel

47. 1) Lorsque des documents sont mis à la disposition du public pour consultation conformément à une obligation légale ou consignés dans un registre officiel, la reproduction, par la personne compétente ou avec son autorisation, d’extraits de ces documents comportant des renseignements concrets de quelque nature que ce soit, dans un but excluant toute diffusion de copies dans le public, ne porte pas atteinte au droit d’auteur sur les documents en question considérés en tant qu’oeuvre littéraire.

2) Lorsque des documents sont mis à la disposition du public pour consultation conformément à une obligation légale, la reproduction ou la diffusion publique de copies de ces documents par la personne compétente ou avec son autorisation, afin de permettre la consultation desdits documents à un moment ou à un endroit plus opportun ou de faciliter par ailleurs l’exercice de tout droit en vue duquel est imposée l’obligation, ne porte pas atteinte au droit d’auteur.

3) Lorsque des documents mis à la disposition du public pour consultation conformément à une obligation légale ou consignés dans un registre officiel comportent des renseignements portant sur des questions d’intérêt général dans le domaine scientifique, technique, commercial ou économique, la reproduction ou la diffusion publique de copies de ces documents, par la personne compétente ou avec son autorisation, en vue de la diffusion de ces renseignements, ne porte pas atteinte au droit d’auteur.

4) Le ministre peut prévoir par voie d’ordonnance que, dans les cas qui pourront être précisés, les dispositions de l’alinéa 1), 2) ou 3) ne s’appliqueront qu’aux copies signalées de la façon qui pourra être ainsi précisée.

5) Le ministre peut prévoir par voie d’ordonnance que, dans la mesure et sous réserve des modifications prévues par ce même texte, les dispositions des alinéas 1) à 3) sont applicables

a)aux documents mis à la disposition du public pour consultation par i) une organisation internationale précisée dans l’ordonnance, ou

ii) une personne ainsi précisée qui exerce des fonctions au Royaume-Uni en vertu d’un accord international auquel le Royaume-Uni est partie;

b) à un registre conservé par une organisation internationale précisée dans l’ordonnance,

au même titre qu’elles sont applicables à l’égard de documents mis à la disposition du public pour consultation conformément à une obligation légale ou à l’égard d’un registre officiel.

6) Dans le présent article on entend par

“personne compétente” la personne tenue de mettre les documents à la disposition du public pour consultation ou, selon le cas, le conservateur du registre;

“registre officiel” un registre conservé en application d’une obligation légale; et

“obligation légale” une obligation imposée aux termes d’un texte en vigueur ou en vertu d’un tel texte.

7) Les ordonnances prévues aux termes du présent article sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Documents communiqués à la Couronne au cours d’une activité publique

48. 1) Le présent article est applicable lorsqu’une oeuvre littéraire, dramatique, musicale ou artistique a, au cours d’une activité publique, été communiquée à la Couronne à quelque fin que ce soit, par le titulaire du droit d’auteur ou avec son autorisation, et qu’un document ou tout autre objet matériel sur lequel l’oeuvre est enregistrée ou auquel elle est incorporée, est en la possession de la Couronne ou placée sous sa garde ou sa surveillance.

2) La Couronne peut, dans le but dans lequel l’oeuvre lui a été communiquée ou à toute autre fin que le titulaire du droit d’auteur aurait normalement pu envisager, reproduire l’oeuvre et en diffuser des copies dans le public sans nullement porter atteinte au droit d’auteur sur cette oeuvre.

3) La Couronne ne peut reproduire une oeuvre ni en diffuser des copies dans le public, en vertu du présent article, si cette oeuvre a déjà été publiée autrement qu’en vertu du présent article.

4) A l’alinéa 1), l’expression “activité publique” désigne aussi toute activité menée par la Couronne.

5) Le présent article est applicable sous réserve de tout accord contraire entre la Couronne et le titulaire du droit d’auteur.

Archives publiques

49. Les documents versés aux archives publiques au sens de la loi de 1958 (Public Records Act 1958), de la loi de 1937 en ce qui concerne l’Ecosse (Public Records (Scotland) Act 1937) et de la loi de 1923 en ce qui concerne l’Irlande du Nord (Public Records Act (Northern Ireland) 1923) qui sont mis à la disposition du public pour consultation en application de la loi considérée peuvent être reproduits et des copies peuvent en être remises à quiconque, par tout fonctionnaire désigné en vertu de cette même loi ou avec son autorisation, sans qu’il soit porté atteinte au droit d’auteur.

Actes accomplis en vertu de la loi

50. 1) Lorsqu’un acte donné est expressément autorisé aux termes d’une loi votée par le Parlement, l’accomplissement de cet acte ne porte pas atteinte au droit d’auteur sauf disposition contraire de ladite loi.

2) Les dispositions de l’alinéa 1) sont applicables au regard d’un texte relevant de la législation de l’Irlande du Nord au même titre qu’elles sont applicables au regard d’une loi du Parlement.

3) Aucune disposition du présent article ne doit être interprétée comme excluant un moyen de défense légal prévu par ailleurs aux termes d’un texte en vigueur ou en vertu d’un tel texte.

Dessins et modèles

Documents et maquettes

51. 1) Ne porte en aucun cas atteinte au droit d’auteur sur un document dans lequel un modèle est consigné ou sur une maquette reprenant un modèle se rapportant à tout autre objet qu’une oeuvre artistique ou un caractère typographique la fabrication d’un objet d’après ce modèle ou la reproduction d’un objet fabriqué d’après ce modèle.

2) Ne constitue pas non plus une atteinte au droit d’auteur le fait de diffuser dans le public ou de faire figurer dans un film, dans une émission de radiodiffusion ou dans un service de câblodistribution tout objet dont la fabrication n’a pas constitué, aux termes dispositions de l’alinéa 1), une atteinte à ce droit d’auteur.

3) Dans le présent article, on entend par

“modèle” le modèle de tout élément de forme ou de configuration (interne ou externe) de l’ensemble ou d’une partie d’un objet, à l’exclusion de la décoration de surface: et

“document dans lequel un modèle est consigné” toute pièce dans laquelle un modèle est consigné, que ce soit sous la forme d’un dessin, d’une description écrite, d’une photographie, de données stockées sur ordinateur ou de toute autre manière.

Conséquences de l’exploitation d’un dessin ou modèle tiré d’une oeuvre artistique

52. 1) Les dispositions du présent article sont applicables lorsqu’une oeuvre artistique a été exploitée, par le titulaire du droit d’auteur ou avec son autorisation.

a) par fabrication, au moyen d’un procédé industriel, d’objets assimilés aux fins de la présente partie à des copies ou exemplaires de l’oeuvre, et

b) par commercialisation de ces objets, au Royaume-Uni ou ailleurs. 2) A l’expiration d’une période de 25 ans à compter de la fin de l’année civile au

cours de laquelle ces objets ont pour la première fois été commercialisés, l’oeuvre peut être reproduite par fabrication d’objets de toute catégorie ou l’accomplissement de tout acte destiné à permettre de fabriquer ces objets, et tout autre acte peut être accompli au regard des objets ainsi fabriqués sans qu’il soit porté atteinte au droit d’auteur sur l’oeuvre.

3) Lorsqu’une partie seulement d’une oeuvre artistique est exploitée de la façon mentionnée à l’alinéa 1), les dispositions de l’alinéa 2) ne sont applicables qu’à l’égard de cette partie.

4) Le ministre peut, par voie d’ordonnance,

a) fixer les conditions auxquelles un objet, ou toute catégorie d’objets, doit être considéré, aux fins du présent article, comme fabriqué au moyen d’un procédé industriel;

b) soustraire à l’application du présent article les objets de caractère essentiellement littéraire et artistique, s’il le juge approprié.

5) Les ordonnances sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

6) Dans le présent article

a) le terme “objet” ne s’applique pas aux films, et b) toute mention de la commercialisation d’un objet doit être interprétée comme

visant le fait de le vendre ou le louer ou de le proposer ou présenter en vue de la vente ou de la location.

Actes accomplis sur la foi de l’enregistrement d’un dessin ou modèle

53. 1) Ne porte atteinte au droit d’auteur sur une oeuvre artistique aucun acte accompli

a) en vertu d’une cession opérée ou d’une licence concédée par une personne inscrite en vertu de la loi de 1949 sur les dessins et modèles enregistrés en tant que propriétaire d’un dessin ou modèle correspondant, et

b) de bonne foi en vertu de l’enregistrement, en l’absence de toute notification d’une procédure tendant à obtenir la radiation de l’enregistrement ou la rectification de l’inscription pertinente au registre des dessins et modèles;

en outre, les présentes dispositions sont applicables nonobstant le fait que la personne inscrite en tant que propriétaire n’était pas propriétaire du dessin ou modèle aux fins de la loi de 1949.

2) A l’alinéa 1), on entend par “dessin ou modèle correspondant”, par rapport à une oeuvre artistique, un dessin ou modèle au sens de la loi de 1949 qui, s’il était appliqué à un objet, donnerait un résultat assimilable, aux fins de la présente partie, à une copie ou reproduction de l’oeuvre artistique.

Caractères typographiques

Utilisation normale dans l’impression

54. 1) Ne porte pas atteinte au droit d’auteur sur une oeuvre artistique consistant en un dessin de caractère typographique le fait

a) d’utiliser normalement ce caractère typographique en dactylographie, composition de texte ou impression,

b) de posséder un objet aux fins de cette utilisation, ou c) d’accomplir un acte de quelque nature que ce soit par rapport à des

documents établis de cette manière,

et les présentes dispositions sont applicables nonobstant le fait qu’un objet constituant une copie ou un exemplaire contrefait de l’oeuvre soit utilisé.

2) Les dispositions suivantes de la présente partie sont cependant applicables à l’égard des personnes qui fabriquent. importent ou exploitent d’une autre manière des objets spécialement conçus ou adaptés pour établir des documents dans un caractère typographique donné. ou qui ont en leur possession des objets de cette nature en vue de les exploiter, au même titre que si l’établissement des documents dans les conditions précisées à l’alinéa 1) portait atteinte au droit d’auteur sur l’oeuvre artistique constituée par le dessin du caractère typographique

article 24 (atteinte indirecte: fabrication, importation, détention et autres actes concernant un objet servant à fabriquer des copies ou exemplaires contrefaits).

articles 99 et 100 (remise d’objets de contrefaçon et droit de saisie),

article 107.2) (délit tenant à la fabrication ou à la détention d’un objet de cette nature), et

article 108 (ordonnance tendant à la remise d’objets de contrefaçon dans le cadre de procédures pénales).

3) A l’alinéa 2), le terme “exploiter”, par rapport à un objet, désigne le fait de le vendre, de le louer, de le proposer ou de le présenter en vue de la vente ou de la location, de l’exposer en public ou de le distribuer.

Objets servant à établir un texte dans un caractère typographique donné

55. 1) Le présent article est applicable au droit d’auteur sur une oeuvre artistique consistant en un dessin de caractère typographique lorsque des objets spécialement conçus ou adaptés pour établir des documents dans ce caractère typographique ont été commercialisés par le titulaire du droit d’auteur ou avec son autorisation.

2) A l’expiration d’une période de 25 ans à compter de la fin de l’année civile au cours de laquelle ces objets ont été commercialisés pour la première fois, l’oeuvre peut être reproduite par la fabrication d’autres objets de même nature. ou l’accomplissement de tout acte destiné à permettre de fabriquer ces objets, et tout autre acte peut être accompli au regard des objets ainsi fabriqués sans qu’il soit porté atteinte au droit d’auteur sur l’oeuvre.

3) A l’alinéa 1), on entend par “commercialisés” vendus, loués, ou proposés ou présentés en vue de la vente ou de la location, au Royaume-Uni ou ailleurs.

Oeuvres sous forme électronique

Transfert de copies d’œuvres sous forme électronique

56. 1) Le présent article est applicable lorsqu’une copie d’une oeuvre sous forme électronique a été achetée à des conditions qui, expressément ou implicitement ou par l’effet de la loi, permettent à l’acquéreur de reproduire l’oeuvre, de l’adapter ou de faire des copies d’une adaptation à l’occasion de l’utilisation de ladite oeuvre.

2) S’il n’existe aucune disposition expresse

a) interdisant le transfert de la copie par l’acquéreur, imposant des obligations subsistant après un transfert, interdisant la cession de toute licence ou prévoyant que le transfert emporte résiliation de toute licence, ou

b) précisant les conditions auxquelles le bénéficiaire d’un transfert peut lui- même accomplir les actes que l’acquéreur était autorisé à accomplir.

tout acte que l’acquéreur était autorisé à accomplir peut aussi l’être par le bénéficiaire d’un transfert sans qu’il y ait atteinte au droit d’auteur; toutefois, toute copie, adaptation ou copie d’une adaptation faite par l’acquéreur qui n’est pas également transférée est assimilée à tous égards à une copie contrefaite après le transfert.

3) Les mêmes dispositions restent applicables lorsque la copie initialement acquise n’est plus utilisable et que le transfert porte sur une copie de substitution.

4) Les dispositions précitées sont également applicables en cas de transfert ultérieur, les mentions de l’acquéreur, à l’alinéa 2), devant alors être interprétées comme désignant le bénéficiaire de tout transfert ultérieur.

Dispositions diverses : d’œuvres littéraires, dramatiques, musicales et artistiques

Oeuvres anonymes ou pseudonymes : actes autorisés dans l’hypothèse de l’expiration du droit d’auteur ou du décès de l’auteur

57. 1) Ne porte pas atteinte au droit d’auteur sur une oeuvre littéraire, dramatique, musicale ou artistique un acte accompli à une époque à laquelle, ou en application de dispositions prises à une époque à laquelle,

a) il n’est pas possible de déterminer l’identité de l’auteur malgré des recherches suffisantes, et

b) on peut normalement supposer i) que le droit d’auteur est expiré, ou

ii) que l’auteur est décédé 50 années ou plus avant le début de l’année civile au cours de laquelle l’acte est accompli ou les dispositions prises.

2) Les dispositions del’alinéa 1)b)ii) ne sont pas applicables au regard

a) d’une oeuvre protégée par un droit d’auteur appartenant à la Couronne, ou b) d’une oeuvre protégée par un droit d’auteur appartenant à titre originaire à

une organisation internationale en vertu de l’article168et pour laquelle une durée de protection supérieure à 50 ans est prévue aux termes d’une ordonnance édictée en vertu dudit article.

3) Dans le cas d’une oeuvre de collaboration

a) à l’alinéa 1). la mention de la possibilité de déterminer l’identité de l’auteur doit être interprétée comme visant la possibilité de déterminer l’identité de l’un des auteurs, et

b) à l’alinéa 1)b)ii), la mention du décès de l’auteur s’entend du décès de tous les auteurs.

Certaines utilisations de notes ou autres enregistrements de paroles

58. 1) Lorsque des paroles sont enregistrées, par écrit ou autrement, en vue a) d’un compte rendu d’événements d’actualité, ou b) de la radiodiffusion ou de la programmation dans un service de

câblodistribution de la totalité ou d’une partie de l’oeuvre,

ne porte en aucun cas atteinte au droit d’auteur sur le texte considéré en tant qu’oeuvre littéraire l’utilisation de l’enregistrement ou de tout extrait de celui-ci (ou la reproduction de l’enregistrement ou de l’extrait et l’utilisation de la copie) aux fins précitées, si les conditions énoncées ci-après sont réunies.

2) Les conditions sont les suivantes

a) l’enregistrement est effectué directement à partir des paroles prononcées et n’est pas repris d’un enregistrement antérieur ni d’une émission ou d’un programme distribué par câble;

b) l’enregistrement n’était pas interdit par l’orateur et, lorsque l’oeuvre était déjà protégée, ne portait pas atteinte au droit d’auteur;

c) l’utilisation faite de l’enregistrement ou de tout extrait de celui-ci ne relève pas d’une interdiction formulée par l’orateur ou par le titulaire du droit d’auteur ou en son nom avant que l’enregistrement n’ait été fait; et

d) l’enregistrement est utilisé par la personne qui est légitimement en possession de celui-ci, ou avec son autorisation

Lecture ou récitation publique

59. 1) La lecture ou la récitation en public, par une personne, d’un extrait d’une longueur raisonnable d’une oeuvre littéraire ou dramatique publiée ne porte en aucun cas atteinte au droit d’auteur sur l’oeuvre si elle est accompagnée d’une mention suffisamment explicite de ladite oeuvre.

2) Ne porte pas atteinte au droit d’auteur l’enregistrement sonore, la radiodiffusion ou la programmation dans un service de câblodistribution d’une lecture ou d’une récitation qui, en vertu de l’alinéa 1), ne porte pas atteinte au droit d’auteur sur l’oeuvre, à condition que l’enregistrement, l’émission de radiodiffusion ou le programme distribué par câble soit essentiellement composé d’éléments ne faisant pas intervenir les dispositions dudit alinéa.

Résumés d’articles scientifiques ou techniques

60. 1) Lorsqu’un article de caractère scientifique ou technique est publié dans un périodique avec un résumé de son contenu, la reproduction du résumé ou la diffusion d’exemplaires de celui-ci dans le public ne porte pas atteinte au droit d’auteur sur le résumé ni sur l’article.

2) Le présent article n’est pas applicable si, ou dans la mesure où, il existe un barème de licences certifié aux fins du présent article en vertu de l’article143 .

Enregistrement de chants folkloriques

61. 1) L’exécution d’une chanson peut faire l’objet d’un enregistrement sonore destiné à être conservé dans les archives d’un organisme désigné sans qu’il soit nullement porté atteinte au droit d’auteur sur le texte considéré en tant qu’œuvre littéraire ni sur l’œuvre musicale qui l’accompagne, si les conditions énoncées à l’alinéa 2) ci-après sont réunies.

2) Les conditions sont les suivantes

a) les paroles n’ont pas été publiées et l’identité de leur auteur est inconnue au moment où est fait l’enregistrement,

b) l’enregistrement ne porte atteinte à aucun autre droit d’auteur, et c) il n’a été interdit par aucun des artistes interprètes ou exécutants. 3) Des copies d’un enregistrement sonore réalisé en application des dispositions de

l’alinéa 1) et conservé dans les archives d’un organisme désigné peuvent, si les conditions prescrites sont réunies, être établies et fournies par l’archiviste sans qu’il soit porté atteinte au droit d’auteur sur l’enregistrement ni sur les d’œuvres qu’il renferme.

4) Les conditions prescrites sont notamment les suivantes

a) les copies ne sont remises qu’aux personnes qui établissent de manière jugée concluante par l’archiviste que ces copies leur sont nécessaires à des fins de recherche ou d’étude personnelle et qu’elles ne les utiliseront à aucune autre fin, et

b) il ne doit en aucun cas être remis à une même personne plus d’une copie du même enregistrement.

5) Dans le présent article

a) on entend par “désigné” désigné aux fins du présent article par ordonnance du ministre, qui ne peut désigner un organisme qu’après avoir acquis la conviction que celui-ci n’est pas constitué ni géré dans un but lucratif,

b) on entend par “prescrit” prescrit aux fins du présent article par ordonnance du ministre, et

c) le terme “archiviste” désigne aussi une personne agissant au nom de celui-ci. 6) Les ordonnances prévues aux termes du présent article sont édictées par voie de

dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Représentation de certaines d’œuvres artistiques exposées en public

62. 1) Le présent article est applicable aux a) édifices, et

b) sculptures, maquettes d’édifices et d’œuvres artistiques artisanales situées en permanence dans un lieu public ou dans des locaux accessibles au public.

2) Ne porte pas atteinte au droit d’auteur sur une oeuvre de cette nature le fait de

a) faire une oeuvre graphique la représentant, b) prendre une photographie ou faire un film de cette oeuvre, ou c radiodiffuser ou programmer dans un service de câblodistribution une image de

cette oeuvre.

3) Ne porte pas non plus atteinte au droit d’auteur la diffusion dans le public de copies ou d’exemplaires, la radiodiffusion ou la programmation dans un service de câblodistribution de tout objet dont la fabrication, aux termes du présent article, ne porte pas atteinte au droit d’auteur.

Annonce de la vente d’une oeuvre artistique

63. 1) Ne constitue pas une atteinte au droit d’auteur sur une oeuvre artistique le fait de la reproduire ou d’en diffuser des copies ou reproductions dans le public en vue d’annoncer la vente de cette oeuvre.

2) Une copie ou une reproduction qui serait contrefaite si elle n’était établie en application du présent article et qui est ensuite exploitée à toute autre fin, est assimilée à une copie contrefaite aux fins de cette exploitation si celle-ci porte atteinte au droit d’auteur à tous autres égards par la suite.

A cette fin, on entend par “exploitation” la vente ou la location, l’offre en vente ou en location ou la présentation en vue de la vente ou de la location, l’exposition en public ou la distribution.

Oeuvres ultérieures d’un même artiste

64. L’auteur d’une oeuvre artistique qui n’est pas titulaire du droit d’auteur ne porte pas atteinte à celui-ci en reproduisant cette oeuvre pour créer une autre oeuvre artistique, à condition de ne pas reprendre ni imiter les caractéristiques principales de l’oeuvre antérieure.

Reconstruction d’édifices

65. Aucun acte accompli en vue de la reconstruction d’un édifice ne porte atteinte au droit d’auteur

a) sur l’édifice, ni b) sur les dessins ou plans d’après lesquels l’édifice a été construit par le

titulaire du droit d’auteur ou avec son autorisation.

Dispositions diverses : enregistrements sonores, films et programmes d’ordinateur

Location d’enregistrements sonores, de films et de programmes d’ordinateur

66. 1) Le ministre peut prévoir par voie d’ordonnance que dans les cas précisés dans celle-ci la location au public de copies d’enregistrements sonores, de films ou de programmes d’ordinateur est considérée comme autorisée par le titulaire du droit d’auteur sous réserve uniquement du versement d’une redevance ou autre rémunération équitable convenue entre les parties ou fixée, à défaut d’accord, par le tribunal du droit d’auteur.

2) Aucune ordonnance de cette nature n’est applicable si, ou dans la mesure où, il existe un barème de licences certifié aux fins du présent article en vertu de l’article143 .

3) Une ordonnance peut prévoir des dispositions différentes selon les cas envisagés et peut définir ces cas en fonction de tout élément se rapportant à l’oeuvre, aux copies ou exemplaires loués, au loueur ou aux conditions de la location.

4) Les ordonnances sont édictées par voie de dispositions réglementaires dont le projet doit avoir été soumis aux deux chambres du Parlement et approuvé par voie de résolution par chacune d’elles.

5) Ne porte pas atteinte au droit d’auteur sur un programme d’ordinateur la location de copies au public après l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle des copies de ce programme ont pour la première fois été diffusées dans le public sous forme électronique.

6) Aucune disposition du présent article n’a d’incidence sur les responsabilités définies à l’article 23 (atteinte indirecte) en ce qui concerne la location de copies ou d’exemplaires contrefaits.

Diffusion d’enregistrements sonores pour les besoins d’un club, d’une association, etc.

67. 1) Ne porte pas atteinte au droit d’auteur sur un enregistrement sonore le fait de le diffuser dans le cadre des activités d’un club, d’une association ou d’une autre organisation, ou au profit de ceux-ci, si les conditions énoncées ci-après sont réunies.

2) Les conditions sont les suivantes

a) l’organisation n’est pas constituée ni gérée dans un but lucratif et ses objectifs sont essentiellement d’ordre caritatif ou tendent d’une autre manière à promouvoir la religion, l’enseignement ou le progrès social, et

b) le produit de tout droit d’entrée dans le lieu où l’enregistrement doit être entendu est affecté exclusivement aux buts de l’organisation.

Disposition diverses : émissions de radiodiffusion et programmes distribués par câble

Enregistrement accessoire aux fins d’une émission de radiodiffusion ou d’un programme distribué par câble

68. 1) Les dispositions du présent article sont applicables lorsque, en vertu d’une licence ou par suite d’une cession du droit d’auteur, une personne est autorisée à radiodiffuser ou à programmer dans un service de câblodistribution

a) une oeuvre littéraire, dramatique ou musicale ou une adaptation d’une oeuvre de cette nature,

b) une oeuvre artistique, ou c) un enregistrement sonore ou un film. 2) En vertu du présent article, la personne considérée est réputée être autorisée par

le titulaire du droit d’auteur sur l’oeuvre à accomplir les actes suivants ou à en autoriser l’accomplissement aux fins de l’émission ou du programme distribué par câble

a) s’agissant d’une oeuvre littéraire, dramatique ou musicale ou d’une adaptation d’une oeuvre de cette nature, faire un enregistrement sonore ou un film de l’oeuvre ou de l’adaptation;

b) s’agissant d’une oeuvre artistique, prendre une photographie ou faire un film de l’oeuvre;

c) s’agissant d’un enregistrement sonore ou d’un film, en faire une copie. 3) Ladite autorisation est subordonnée à la condition que l’enregistrement, le film,

la photographie ou la copie en question

a) ne soit utilisé dans aucun autre but, et b) soit détruit dans les 28 jours suivant sa première utilisation aux fins de la

radiodiffusion de l’oeuvre ou, selon le cas, sa programmation dans un service de câblodistribution.

4) Un enregistrement, un film, une photographie ou une copie fait en application du présent article est considéré comme une copie ou un exemplaire contrefait

a) aux fins de toute utilisation en violation des dispositions de l’alinéa 3)a), et b) en toute hypothèse lorsque ces dispositions ou celles de l’alinéa 3)b) n’ont

pas été respectées.

Enregistrement aux fins de la supervision et du contrôle d’émissions de radiodiffusion et de programmes distribués par câble

69. 1) La British Broadcasting Corporation ne porte pas atteinte au droit d’auteur lorsqu’elle fait ou utilise, afin d’assurer la supervision et le supervision et le contrôle des programmes qu’elle diffuse, des enregistrements de ces programmes.

2) Ne porte pas atteinte au droit d’auteur

a) la réalisation ou l’utilisation d’enregistrements par l’Independent Broadcasting Authority aux fins mentionnées à l’article 4.7) de la loi de 1981 sur la radiodiffusion (supervision et contrôle des programmes et de la publicité); ni

b) un acte accompli en vertu ou en application des clauses d’un contrat conclu entre un fournisseur de programmes et l’Authority conformément à l’article 21 de ladite loi.

3) Ne porte pas atteinte au droit d’auteur

a)la réalisation, par la Cable Authority ou avec son autorisation, ou l’utilisation par ladite Authority, en vue de la supervision et du contrôle de programmes distribués dans le cadre de services autorisés en vertu de la première partie de la loi de 1984 sur la distribution par câble et la radiodiffusion, d’enregistrements de ces programmes; ni

b)un acte accompli en vertu ou en application i) d’une notification adressée ou d’une instruction donnée en vertu de

l’article 16 de la loi de 1984 sur la distribution par câble et la radiodiffusion (pouvoir de la Cable Authority d’exiger la production d’enregistrements); ou

ii) d’une condition définie dans une licence en vertu de l’article35 de ladite loi (obligation de l’Authority de veiller à ce que des enregistrements soient disponibles à certaines fins).

Enregistrement en vue de l’aménagement du temps d'écoute

70. La réalisation, en vue d’un usage personnel et privé, d’un enregistrement d’une émission de radiodiffusion ou d’un programme distribué par câble à seule fin de pouvoir le regarder ou l’écouter à un moment plus opportun ne porte en aucun cas atteinte au droit d’auteur sur l’émission ou le programme ni sur aucune oeuvre comprise dans ceux-ci.

Photographies d’émissions de télévision ou de programmes distribués par câble

71. Le fait de faire, en vue d’un usage personnel et privé, une photographie de la totalité ou d’une partie d’une image comprise dans une émission de télévision ou dans un programme distribué par câble, ou une copie d’une telle photographie, ne porte en aucun cas atteinte au droit d’auteur sur l’émission ou le programme ni sur aucun film compris dans ceux-ci.

Projection ou diffusion publique gratuite d’une émission de radiodiffusion ou d’un programme distribué par câble

72. 1) La projection ou la diffusion publique d’une émission de radiodiffusion ou d’un programme distribué par câble à l’intention d’un public n’ayant pas payé de droit d’entrée dans le lieu où l’émission ou le programme doit être vu ou entendu ne porte en aucun cas atteinte au droit d’auteur sur

a) l’émission de radiodiffusion ou le programme distribué par câble, ni sur b) un enregistrement sonore ou un film compris dans ceux-ci. 2) Le public est considéré comme ayant payé un droit d’entrée dans un endroit

donné

a) si un droit d’entrée a dû être versé pour avoir accès à un lieu dont cet endroit fait partie; ou

b) si des produits ou services sont fournis à cet endroit (ou dans un lieu dont celui-ci fait partie)

i) à des prix essentiellement imputables à la possibilité qui est donnée de voir ou d’entendre l’émission ou le programme, ou

ii) à des prix supérieurs à ceux qui sont habituellement pratiqués dans le lieu considéré, cette majoration étant en partie imputable à cette possibilité.

3) Ne sont pas considérées comme ayant payé un droit d’entrée

a) les personnes admises dans le lieu en question en qualité de résidents ou de pensionnaires;

b) les personnes admises en qualité de membres d’un club ou d’une association au cas où les intéressés ne sont tenus de payer que pour devenir membres du club ou de l’association et où la possibilité qui est donnée de voir ou d’entendre les émissions ou programmes n’a qu’un caractère accessoire par rapport aux principaux objectifs du club ou de l’association.

4) Lorsque la réalisation de l’émission ou l’inclusion du programme dans un service de câblodistribution a porté atteinte au droit d’auteur sur un enregistrement sonore ou un film, le fait que celui-ci ait été entendu ou vu en public par réception de l’émission ou du programme est pris en compte pour l’appréciation du montant des dommages- intérêts exigibles au titre de l’acte incriminé.

Réception et retransmission d’une émission dans un service de câblodistribution

73. 1) Les dispositions du présent article sont applicables lorsqu’une émission faite à partir d’un lieu situé au Royaume-Uni est, par voie de réception et de retransmission immédiate, programmée dans un service de câblodistribution.

2) Il n’y a pas atteinte au droit d’auteur sur l’émission

a) si la programmation répond à une obligation découlant de l’article 13.1) de la loi de 1984 sur la distribution par câble et la radiodiffusion (obligation de la Cable Authority de veiller à ce que certains programmes figurent dans le service de câblodistribution), ou

b) si et dans la mesure où cette émission est destinée à être captée dans la zone dans laquelle est assuré le service de câblodistribution et ne constitue ni une transmission par satellite ni une transmission codée.

3) Il n’y a en aucun cas atteinte au droit d’auteur sur une oeuvre comprise dans l’émission

b) si et dans la mesure où cette émission est destinée à être captée dans la zone dans laquelle est assuré le service de câblodistribution;

toutefois, lorsque la réalisation de l’émission a porté atteinte au droit d’auteur sur l’oeuvre, le fait que l’émission ait été retransmise par programmation dans un service de

câblodistribution est pris en compte pour l’appréciation du montant des dommages- intérêts exigibles au titre de l’acte incriminé.

Fourniture de copies sous-titrées d’émissions ou de programmes distribués par câble

74. 1) Un organisme désigné peut, afin de mettre à la disposition des sourds ou malentendants et des personnes souffrant d’un autre handicap physique ou intellectuel, des copies sous-titrées ou modifiées d’une autre manière pour répondre à leurs besoins particuliers, faire des copies d’émissions de télévision ou de programmes distribués par câble et diffuser ces copies dans le public sans nullement porter atteinte au droit d’auteur sur les émissions ou programmes en question ni sur les d’œuvres comprises dans ceux-ci.

2) On entend par “organisme désigné” un organisme désigné aux fins du présent article par ordonnance du ministre, qui ne peut procéder à cette désignation qu’après avoir acquis la conviction que l’organisme en question n’est pas constitué ni géré dans un but lucratif.

3) Toute ordonnance prévue aux termes du présent article est édictée par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

4) Les dispositions du présent article ne sont pas applicables si, ou dans la mesure où, il existe un barème de licences certifié aux fins du présent article en vertu de l’article 143.

Enregistrement à des fins d’archivage

75. 1) Un enregistrement d’une émission ou d’un programme distribué par câble relevant d’une catégorie déterminée, ou une copie d’un enregistrement de cette nature, peut être réalisé en vue d’être conservé dans les archives d’un organisme désigné sans que cet acte porte nullement atteinte au droit d’auteur sur l’émission ou le programme ni sur aucune oeuvre comprise dans ceux-ci.

2) A l’alinéa 1), on entend par “désigné” désigné aux fins du présent article par ordonnance du ministre, qui ne peut désigner un organisme qu’après avoir acquis la conviction que celui-ci n’est pas constitué ni géré dans un but lucratif.

3) Les ordonnances prévues aux termes du présent article sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Adaptations

Adaptations

76. Un acte qui, en vertu du présent chapitre, peut être accompli sans porter atteinte au droit d’auteur sur une oeuvre littéraire, dramatique ou musicale ne porte en aucun cas atteinte, lorsque l’oeuvre est une adaptation, au droit d’auteur sur l’oeuvre à partir de laquelle a été faite cette adaptation.

CHAPITRE IV DROIT MORAL

Droit d’être identifié en tant qu’auteur ou réalisateur

Droit d’être identifié en tant qu’auteur ou réalisateur

77. 1) L’auteur d’une oeuvre littéraire, dramatique, musicale ou artistique protégée et le réalisateur d’un film protégé ont le droit d’être identifiés en tant qu’auteur ou réalisateur de l’oeuvre dans les conditions précisées dans le présent article; toutefois, il ne peut y avoir d’atteinte à ce droit que s’il a été revendiqué en application des dispositions de l’article 78.

2) L’auteur d’une oeuvre littéraire (à l’exclusion d’un texte destiné à être chanté ou parlé avec de la musique) ou d’une oeuvre dramatique a le droit d’être identifié dès lors que

a) l’oeuvre est publiée commercialement, représentée ou exécutée en public, radiodiffusée ou programmée dans un service de câblodistribution, ou

b) des copies d’un film ou d’un enregistrement sonore dans lequel figure l’oeuvre sont diffusées dans le public;

en outre, lorsque l’un de ces événements se produit par rapport à une adaptation de l’oeuvre, ce droit comprend aussi celui d’être identifié en tant qu’auteur de l’oeuvre à partir de laquelle l’adaptation a été faite.

3) L’auteur d’une oeuvre musicale, ou d’une oeuvre littéraire consistant en un texte destiné à être chanté ou parlé avec de la musique. a le droit d’être identifié dès lors que

a) l’oeuvre est publiée commercialement; b) des copies d’un enregistrement sonore de l’oeuvre sont diffusées dans le

public: ou

c) un film dont la piste sonore comprend l’oeuvre est projeté en public ou des copies de ce film sont diffusées dans le public;

en outre, lorsque l’un de ces évènements se produit par rapport à une adaptation de l’oeuvre, ce droit comprend aussi celui d’être identifié en tant qu’auteur de l’oeuvre à partir de laquelle l’adaptation a été faite.

4) L’auteur d’une oeuvre artistique a le droit d’être identifié dès lors que

a) l’oeuvre est publiée commercialement ou exposée en public, ou une image visuelle en est radiodiffusée ou programmée dans un service de câblodistribution:

b) un film comprenant une image visuelle de l’oeuvre est projeté en public ou des copies de ce film sont diffusées dans le public: ou

c) s’agissant d’une oeuvre d’architecture consistant en un édifice ou une maquette d’édifice, d’une sculpture ou d’une oeuvre artistique artisanale, des copies d’une oeuvre graphique la représentant, ou d’une photographie de cette oeuvre, sont diffusées dans le public.

5) L’auteur d’une oeuvre d’architecture consistant en un édifice a aussi le droit d’être identifié sur l’édifice bâti ou, lorsque plusieurs édifices sont bâtis d’après le même plan, sur le premier d’entre eux.

6) Le réalisateur d’un film a le droit d’être identifié dès lors que le film est projeté en public, radiodiffusé ou programmé dans un service de câblodistribution ou que des copies en sont diffusées dans le public.

7) Le droit reconnu à l’auteur ou au réalisateur en vertu du présent article consiste

a) s’agissant de la publication commerciale ou de la diffusion dans le public de copies d’un film ou d’un enregistrement sonore, à être identifié dans ou sur chaque copie ou, si cela n’est pas possible, de toute autre manière permettant de porter son identité à l’attention de tout acquéreur d’une copie,

b) s’agissant de l’identification d’un édifice, à être identifié de manière appropriée de façon visible par les personnes qui pénètrent dans l’édifice ou qui s’en approchent, et

c) dans tout autre cas, à être identifié de façon à ce que son identité soit portée à l’attention d’une personne qui voit ou entend la représentation ou exécution, l’exposition, la projection, l’émission de radiodiffusion ou le programme distribué par câble en question;

l’identification doit toujours être claire et suffisamment en évidence.

8) Si l’auteur ou le réalisateur qui revendique le droit d’être identifié précise un pseudonyme, des initiales ou tout autre mode particulier d’identification, ce dernier doit être utilisé; sinon, il est possible d’avoir recours à tout mode d’identification normalement acceptable.

9) Le présent article est applicable sous réserve des dispositions de l’article79 (exceptions touchant le droit).

Nécessité de revendiquer le droit

78. 1) Nul ne porte atteinte au droit conféré par l’article 77 (droit d’être identifié en tant qu’auteur ou réalisateur) en accomplissant un acte mentionné dans ledit article si le droit n’a pas été revendiqué en application des dispositions suivantes de façon à lui être opposable en ce qui concerne l’acte considéré.

2) Le droit peut être revendiqué de façon générale ou par rapport à tout acte ou catégorie d’actes déterminé

a) en cas de cession du droit d’auteur sur l’oeuvre, en précisant dans l’acte de cession que l’auteur ou le réalisateur revendique par rapport à cette oeuvre le droit d’être identifié, ou

b) dans un document établi par écrit et signé par l’auteur ou le réalisateur. 3) Le droit peut aussi être revendiqué par rapport à l’exposition publique d’une

oeuvre artistique

a) en faisant en sorte que, lorsque l’auteur ou tout autre titulaire originaire du droit d’auteur se dessaisit de l’original, ou d’une copie réalisée par lui-même

ou sous sa direction ou sa surveillance, l’auteur soit identifié sur l’original ou sur la copie, ou sur un cadre, support ou autre élément auquel celui-ci est fixé, ou

b) en faisant figurer dans une licence aux termes de laquelle l’auteur ou tout autre titulaire originaire du droit d’auteur autorise la réalisation de copies de l’oeuvre une mention signée par la personne accordant la licence ou en son nom et précisant que l’auteur revendique le droit d’être identifié en cas d’exposition publique d’une copie réalisée en application de la licence.

4) Les personnes auxquelles est opposable la revendication du droit en application des dispositions de l’alinéa 2) ou de l’alinéa 3) sont

a) s’agissant d’une revendication en vertu des dispositions de l’alinéa 2)a), le cessionnaire et tout ayant cause de celui-ci, qu’il ait ou non connaissance de la revendication;

b) s’agissant d’une revendication en vertu des disposition de l’alinéa 2)b), toute personne à la connaissance de laquelle est portée la revendication;

c) s’agissant d’une revendication en vertu des dispositions de l’alinéa 3)a), quiconque entre en possession de cet original ou de cette copie, que l’identification soit ou non toujours présente ou visible:

d) s’agissant d’une revendication en vertu de l’alinéa 3)b), le preneur de licence et quiconque entre en possession d’une copie réalisée en vertu de la licence, qu’il ait ou non connaissance de la revendication.

5) Dans une action pour atteinte au droit, le tribunal prend en considération, pour déterminer les réparations à accorder, tout retard apporté à la revendication du droit.

Exceptions

79. 1) L’exercice du droit conféré en vertu de l’article77 (droit d’être identifié en tant qu’auteur ou réalisateur) fait l’objet des exceptions suivantes.

2) Le droit ne peut être exercé par rapport aux catégories d’œuvres suivantes:

a) un programme d’ordinateur; b) le dessin d’un caractère typographique; c) toute oeuvre créée par ordinateur. 3) Le droit ne peut être exercé à l’égard d’aucun acte accompli par le titulaire du

droit d’auteur ou avec son autorisation lorsque le droit d’auteur sur l’oeuvre appartient à titre originaire

a) à l’employeur de l’auteur en vertu de l’article 11.2) (d’œuvres créées en cours d’emploi), ou

b) à l’employeur du réalisateur en vertu de l’article9.2)a)(personne réputée être l’auteur du film).

4) Ne porte pas atteinte au droit un acte qui, en vertu des dispositions suivantes, ne porterait pas atteinte au droit d’auteur sur l’oeuvre

a) article 30 (acte loyal à certaines fins), dans la mesure où il se rapporte au compte rendu d’événements d’actualité au moyen d’un enregistrement sonore, d’un film, d’une émission de radiodiffusion ou d’un programme distribué par câble;

b) article 31 (inclusion fortuite de l’oeuvre dans une oeuvre artistique, un enregistrement sonore, un film, une émission de radiodiffusion ou un programme distribué par câble);

c) article 32.3) (questions d’examen); d) article 45 (procédures parlementaires et judiciaires); e) article 46.1) ou 2) (commissions royales et enquêtes légales); f) article 51 (utilisation de documents dans lesquels des modèles sont consignés

et de maquettes);

g) article 52 (conséquences de l’exploitation d’un dessin ou modèle tiré d’une oeuvre artistique);

h) article 57 (d’œuvres anonymes ou pseudonymes: actes autorisés dans l’hypothèse de l’expiration du droit d’auteur ou du décès de l’auteur).

5) Le droit ne peut être exercé par rapport à une oeuvre créée en vue de rendre compte d’événements d’actualité.

6) Le droit ne peut être exercé par rapport à la publication dans

a) un journal, un magazine ou un périodique analogue, ou b) une encyclopédie, un dictionnaire, un annuaire ou un autre ouvrage collectif

de référence,

d’une oeuvre littéraire, dramatique, musicale ou artistique créée en vue de cette publication ou mise à disposition avec l’autorisation de l’auteur en vue de cette publication.

7) Le droit ne peut être exercé par rapport à

a) une oeuvre protégée par un droit d’auteur appartenant à la Couronne ou au Parlement, ou

b) une oeuvre protégée par un droit d’auteur appartenant à titre originaire à une organisation internationale en vertu de l’article 168, à moins que l’auteur ou le réalisateur n’ait déjà été identifié en tant que tel dans ou sur des copies ou exemplaires publiés de l’oeuvre.

Droit de s’opposer à toute atteinte à l’oeuvre

Droit de s’opposer à toute atteinte à l’oeuvre

80. 1) L’auteur d’une oeuvre littéraire, dramatique. musicale ou artistique protégée et le réalisateur d’un film protégé a le droit de s’opposer, dans les conditions prévues dans le présent article, à toute modification de nature à porter atteinte à son oeuvre.

2) Aux fins du présent article

a) on entend par “modification” par rapport à une oeuvre toute adjonction ou suppression ainsi que toute transformation ou adaptation de l’oeuvre, à l’exclusion

i) d’une traduction d’une oeuvre littéraire ou dramatique, ou

ii) d’un arrangement ou d’une transcription d’une oeuvre musicale se limitant à un changement de clef ou de tonalité et

b) la modification d’une oeuvre constitue une atteinte à celle-ci si elle se traduit par une déformation ou une mutilation de l’oeuvre ou est d’une autre manière préjudiciable à l’honneur ou à la réputation de l’auteur ou du réalisateur;

dans les dispositions suivantes du présent article, toute mention d’une version abusivement modifiée ou d’une modification abusive d’une oeuvre doit être interprétée de manière correspondante.

3) S’agissant d’une oeuvre littéraire, dramatique ou musicale, porte atteinte au droit quiconque

a) public commercialement, représente ou exécute en public, radiodiffuse ou programme dans un service de câblodistribution une version abusivement modifiée de l’oeuvre; ou

b) diffuse dans le public des copies d’un film ou d’un enregistrement sonore consistant en une version abusivement modifiée ou comprenant une modification abusive de l’oeuvre.

4) S’agissant d’une oeuvre artistique, porte atteinte au droit quiconque

a) public commercialement ou expose en public une modification abusive de l’oeuvre, ou radiodiffuse ou programme dans un service de câblodistribution une image visuelle d’une telle modification,

b) projette en public un film comportant une image visuelle d’une modification abusive de l’oeuvre ou diffuse dans le public des copies d’un film de cette nature, ou

c) s’agissant i) d’une oeuvre d’architecture consistant en une maquette de bâtiment,

ii) d’une sculpture, ou

iii) d’une oeuvre artistique artisanale.

diffuse dans le public des copies ou exemplaires d’une oeuvre graphique représentant une modification abusive de l’oeuvre ou d’une photographie de cette modification.

5) Les dispositions de l’alinéa 4) ne sont pas applicables à une oeuvre d’architecture consistant en un édifice; toutefois, lorsque l’auteur d’une oeuvre de cette nature est identifié sur l’édifice et que celui-ci fait l’objet d’une modification abusive. il peut exiger la suppression de l’identification.

6) S’agissant d’un film, porte atteinte au droit quiconque

a) projette en public, radiodiffuse ou programme dans un service de câblodistribution une version abusivement modifiée de celui-ci, ou

b) diffuse dans le public des copies d’une version abusivement modifiée du film,

ou quiconque diffuse en public, radiodiffuse ou programme dans un service de câblodistribution, en même temps que le film, une version abusivement modifiée de la piste sonore, ou en diffuse des copies dans le public.

7) Le droit conféré aux termes du présent article s’étend à la modification partielle d’une oeuvre résultant d’une modification précédemment opérée par une autre personne que l’auteur ou le réalisateur, si les parties de l’oeuvre ainsi modifiées sont attribuées à l’auteur ou au réalisateur ou sont de nature à être considérées comme étant l’oeuvre de celui-ci.

8) Le présent article est applicable sous réserve des dispositions des articles 81 et 82 (exceptions et aménagement du droit).

Exceptions

81. 1) L’exercice du droit conféré aux termes des dispositions de l’article 80 (droit de s’opposer à toute atteinte à l’oeuvre) fait l’objet des exceptions suivantes.

2) Le droit ne peut être exercé à l’égard d’un programme d’ordinateur ni d’aucune oeuvre créée par ordinateur.

3) Le droit ne peut être exercé par rapport à une oeuvre créée en vue de rendre compte d’événements d’actualité.

4) Le droit ne peut être exercé par rapport à la publication dans

a) un journal, un magazine ou un périodique analogue. ou b) une encyclopédie, un dictionnaire, un annuaire ou un autre ouvrage collectif

de référence.

d’une oeuvre littéraire, dramatique, musicale ou artistique créée en vue de cette publication ou mise à disposition avec l’autorisation de l’auteur en vue de cette publication.

Le droit ne peut pas non plus être exercé par rapport à une exploitation ultérieure de cette oeuvre en un autre lieu sans aucune modification de la version publiée.

5) Ne porte pas atteinte au droit un acte qui, en vertu de l’article 57 (d’œuvres anonymes ou pseudonymes: actes autorisés dans l’hypothèse de l’expiration du droit d’auteur ou du décès de l’auteur) ne porterait pas atteinte au droit d’auteur.

6) Ne porte en aucun cas atteinte au droit un acte accompli afin

a) d’éviter qu’un délit soit commis, b) de respecter une obligation imposée aux termes d’un texte en vigueur ou en

vertu d’un tel texte, ou

c) s’agissant de la British Broadcasting Corporation, d’éviter que figure dans l’un de ses programmes tout élément contraire au bon goût ou à la décence, ou de nature à pousser ou à inciter au crime, à provoquer des désordres ou à heurter l’opinion publique,

à condition que, lorsque l’auteur ou le réalisateur est identifié au moment de l’acte considéré ou a précédemment été identifié dans ou sur des copies ou exemplaires publiés de l’oeuvre, sa responsabilité soit dégagée de façon suffisamment explicite.

Aménagement du droit dans certains cas

82. 1) Le présent article est applicable a) aux d’œuvres protégées par un droit d’auteur appartenant à titre originaire à

l’employeur de l’auteur en vertu de l’article11.2) (d’œuvres créées en cours d’emploi) ou à l’employeur du réalisateur en vertu de l’article 9.2)a) (personne réputée être l’auteur du film),

b) aux d’œuvres protégées par un droit d’auteur appartenant à la Couronne ou au Parlement, et

c) aux d’œuvres protégées par un droit d’auteur appartenant à titre originaire à une organisation internationale en vertu de l’article168.

2) Le droit conféré aux termes de l’article 80(droit de s’opposer à toute atteinte à l’oeuvre) ne peut être exercé à l’égard d’un acte accompli par rapport à une oeuvre de cette nature par le titulaire du droit d’auteur ou avec son autorisation, qu’à condition que l’auteur ou le réalisateur

a) ait été identifié au moment de l’acte considéré, ou b) ait précédemment été identifié dans ou sur des copies ou exemplaires publiés de

l’oeuvre;

et, en pareil cas, il n’est pas porté atteinte au droit si la responsabilité de l’intéressé est dégagée de façon suffisamment explicite.

Atteinte au droit résultant de la détention d’un objet de contrefaçon ou de certains actes accomplis par rapport à cet objet

83. 1) Porte aussi atteinte au droit conféré aux termes de l’article80 (droit de s’opposer à toute atteinte à l’oeuvre) quiconque

a) a en sa possession dans le cadre d’une activité commerciale, b) vend ou loue, ou propose ou présente en vue de la vente ou de la location, c) expose en public ou distribue dans le cadre d’une activité commerciale, ou d) distribue autrement que dans le cadre d’une activité commerciale et de façon

préjudiciable à l’honneur ou à la réputation de l’auteur ou du réalisateur

un objet de contrefaçon en sachant ou en ayant des raisons de penser qu’il s’agit d’un objet de cette nature.

2) On entend par “objet de contrefaçon” une oeuvre ou une copie ou un exemplaire d’une oeuvre

a) à laquelle ou auquel il a été porté atteinte au sens de l’article80 , et b) qui a fait ou est de nature à faire l’objet d’un acte mentionné dans ledit article

dans des conditions portant atteinte à ce droit.

Attribution abusive de l’oeuvre

Attribution abusive de l’œuvre

84. 1) Toute personne a le droit, dans les conditions mentionnées dans le présent article,

a) de ne pas se voir faussement attribuer la paternité d’une oeuvre littéraire, dramatique, musicale ou artistique, et

b) de ne pas se voir faussement attribuer la qualité de réalisateur; dans le présent article, on entend par “attribution”, par rapport à une telle oeuvre, une mention (expresse ou implicite) quant à l’identité de l’auteur ou du réalisateur.

2) Porte atteinte au droit quiconque

a) diffuse dans le public des copies ou exemplaires d’une oeuvre relevant d’une des catégories précitées sur lesquels ou dans lesquels figure une attribution abusive, ou

b) expose en public une oeuvre artistique, ou une copie d’une oeuvre artistique, sur laquelle ou dans laquelle figure une attribution abusive.

3) Porte aussi atteinte au droit quiconque

a) s’agissant d’une oeuvre littéraire, dramatique ou musicale, représente ou exécute l’oeuvre en public, la radiodiffuse ou la programme dans un service de câblodistribution en la présentant comme l’oeuvre d’une personne donnée, ou

b) s’agissant d’un film, le projette en public, le radiodiffuse ou le programme dans un service de câblodistribution en le présentant comme réalisé par une personne donnée,

en sachant ou en ayant des raisons de penser qu’il s’agit d’une attribution abusive.

4) Porte aussi atteinte au droit la diffusion dans le public ou la présentation publique de documents comportant une attribution abusive en liaison avec tout acte mentionné à l’alinéa 2) ou 3).

5) Porte aussi atteinte au droit quiconque, dans le cadre d’une activité commerciale,

a) a en sa possession ou exploite une copie ou un exemplaire d’une oeuvre relevant d’une des catégories mentionnées à l’alinéa 1) dans lequel ou sur lequel figure une attribution abusive, ou

b) s’agissant d’une oeuvre artistique, a en sa possession ou exploite l’oeuvre proprement dite alors qu’une attribution abusive y figure,

en sachant ou en ayant des raisons de penser qu’il existe une telle attribution et que celle- ci est abusive.

6) S’agissant d’une oeuvre artistique, porte aussi atteinte au droit quiconque, dans le cadre d’une activité commerciale,

a) exploite une oeuvre qui a été transformée après que l’auteur s’en est dessaisi en la présentant comme l’oeuvre non modifiée de l’auteur, ou

b) exploite une copie ou un exemplaire d’une telle oeuvre en le présentant comme la copie ou l’exemplaire de l’oeuvre non modifiée de l’auteur,

en sachant ou en ayant des raisons de penser que tel n’est pas le cas.

7) Dans le présent article, le terme “exploiter” désigne le fait de vendre ou de louer, de proposer ou de présenter en vue de la vente ou de la location, d’exposer en public ou de distribuer.

8) Les dispositions du présent article sont applicables lorsque,

a) une oeuvre littéraire, dramatique ou musicale est faussement présentée comme une adaptation de l’oeuvre d’une personne, ou

b) une copie d’une oeuvre artistique est faussement présentée comme une copie faite par l’auteur de cette oeuvre,

au même titre qu’il est applicable lorsque l’oeuvre est faussement attribuée à une personne présentée comme l’auteur.

Droit à la non-divulgation de certains films et photographies

Droit à la non-divulgation de certains films et photographies

85. 1) Lorsqu’une photographie a été prise ou un film réalisé sur commande pour l’usage personnel et privé de la personne ayant commandé l’oeuvre, celle-ci a le droit de s’opposer aux actes suivants lorsque l’oeuvre ainsi réalisée est protégée

a) diffusion dans le public de copies ou d’exemplaires de l’oeuvre, b) exposition ou projection publique de l’oeuvre, ou c) radiodiffusion de l’oeuvre ou programmation de celle-ci dans un service de

câblodistribution;

et, exception faite des cas mentionnés à l’alinéa 2), quiconque accomplit ou autorise l’accomplissement de ces actes porte atteinte audit droit.

2) Ne porte pas atteinte au droit un acte qui, en vertu des dispositions suivantes, ne porterait pas atteinte au droit d’auteur sur l’oeuvre

a) article 31 (inclusion fortuite de l’oeuvre dans une oeuvre artistique, un film, une émission de radiodiffusion ou un programme distribué par câble);

b) article 45 (procédures parlementaires et judiciaires);

c) article 46 (commissions royales et enquêtes légales); d) article 50 (actes accomplis en vertu de la loi); e) article 57 (d’œuvres anonymes ou pseudonymes: actes autorisés dans

l’hypothèse de l’expiration du droit d’auteur ou du décès de l’auteur).

Dispositions supplémentaires

Durée des droits

86. 1) Les droits conférés aux termes des dispositions de l’article 77 (droit d’être identifié en tant qu’auteur ou réalisateur), de l’article80 (droit de s’opposer à toute atteinte à l’oeuvre) et de l’article85(droit à la non-divulgation de certains films et photographies) peuvent être exercés tant que l’oeuvre est protégée.

2) Le droit conféré aux termes des dispositions de l’article 84 (attribution abusive) peut être exercé jusqu’à l’expiration d’une période de 20 ans après le décès de l’intéressé.

Autorisation et renonciation au droit

87. 1) Ne porte pas atteinte aux droits conférés aux termes des dispositions du présent chapitre l’accomplissement de tout acte autorisé par le titulaire du droit considéré.

2) Tous ces droits peuvent faire l’objet d’une renonciation, qui doit être constatée par écrit dans un acte signé par la personne qui y renonce.

3) Une renonciation

a) peut porter sur une oeuvre déterminée, sur des d’œuvres d’une catégorie déterminée ou sur toutes les d’œuvres en général, et peut viser des d’œuvres actuelles ou futures, et

b) peut être subordonnée ou non à une condition et être sujette à révocation; en outre, si elle est faite en faveur du titulaire ou du titulaire à venir du droit d’auteur sur l’oeuvre ou les d’œuvres auxquelles elle se rapporte, elle est présumée s’étendre aux bénéficiaires de licences concédées par l’intéressé et à leurs ayants cause, sauf disposition contraire expresse.

4) Aucune disposition du présent chapitre ne saurait être interprétée comme écartant l’application des principes généraux du droit des obligations ou de l’irrecevabilité (estoppel) par rapport à une renonciation non formelle ou à toute autre transaction se rapportant à l’un des droits mentionnés à l’alinéa 1).

Application des dispositions aux d’œuvres de collaboration

88. 1) Le droit conféré aux termes des dispositions de l’article 77 (droit d’être identifié en tant qu’auteur ou réalisateur) est, dans le cas d’une oeuvre en collaboration, le droit reconnu à chaque auteur d’être identifié en tant que coauteur et doit être revendiqué par chacun des coauteurs pour son propre compte en application des dispositions de l’article 78.

2) Le droit conféré aux termes des dispositions de l’article 80 (droit de s’opposer à toute atteinte à l’oeuvre) est, dans le cas d’une oeuvre de collaboration, reconnu à chacun des coauteurs et ce droit est respecté si l’intéressé autorise la modification en question.

3) Le fait que l’un des coauteurs renonce à ses droits en vertu des dispositions de l’article 87 n’a aucune incidence sur les droits des autres coauteurs.

4) Constitue une atteinte au droit conféré aux termes des dispositions de l’article 84 (attribution abusive) dans les conditions mentionnées dans ledit article,

a) toute déclaration mensongère concernant la paternité d’une oeuvre de collaboration, et

b) l’attribution abusive de la qualité d’oeuvre de collaboration à l’oeuvre d’un seul auteur,

et une telle attribution abusive porte atteinte au droit de toute personne à laquelle est attribuée, à tort ou à raison, la paternité d’une oeuvre d’une catégorie donnée.

5) Les dispositions qui précèdent sont applicables (sous réserve de toute adaptation nécessaire) au regard d’un film ayant été, ou étant censé avoir été, réalisé en collaboration au même titre qu’elles le sont à une oeuvre qui est, ou est censée être, une oeuvre de collaboration.

Un film est “réalisé en collaboration” si deux réalisateurs ou plus ont concouru à sa réalisation et si la contribution de chacun est indissociable de celle de l’autre ou des autres réalisateurs.

6) Le droit conféré aux termes des dispositions de l’article 85 (droit à la non- divulgation de certains films et photographies) est, dans le cas d’une oeuvre commandée en commun, reconnu à chacune des personnes ayant commandé la réalisation de l’oeuvre, de telle sorte que

a) le droit de chacune d’elles est respecté si elle autorise l’acte en question, et b) une renonciation émanant de l’une d’elles en vertu de l’article87 n’a aucune

incidence sur les droits des autres.

Application des dispositions à certaines parties d’œuvres

89. 1) Les droits conférés aux termes des dispositions de l’article 77 (droit d’être identifié en tant qu’auteur ou réalisateur) et de l’article85 (droit à la non-divulgation de certains films et photographies) peuvent être exercés par rapport à l’ensemble de l’oeuvre ou à une partie importante de celle-ci.

2) Les droits conférés aux termes des dispositions de l’article 80 (droit de s’opposer à toute atteinte à l’oeuvre) et de l’article84(attribution abusive) peuvent être exercés par rapport à l’ensemble de l’oeuvre ou à toute partie de celle-ci.

CHAPITRE V ACTES RELATIFS AUX DROITS AFFÉRENTS À DES OEUVRES PROTÉGÉES

Droit d’auteur

Cession et licences

90. 1) Le droit d’auteur est transmissible par cession, par disposition testamentaire ou par l’effet de la loi, en tant que bien meuble.

2) La cession ou toute autre transmission du droit d’auteur peut être partielle, c’est- à-dire limitée de façon à s’appliquer

a) à l’un ou plusieurs, mais non à la totalité, des actes que le titulaire du droit d’auteur a le droit exclusif d’accomplir;

b) à une partie, mais non à la totalité, de la période correspondant à la durée de validité du droit d’auteur.

3) La cession du droit d’auteur n’a d’effet que si elle est constatée par écrit dans un acte signé par le cédant ou en son nom.

4) Une licence accordée par le titulaire de droit d’auteur est opposable à tout ayant cause de ce dernier pour les prérogatives afférentes à ce droit, sauf s’il s’agit d’un acheteur de bonne foi qui n’a pas été avisé (effectivement ou implicitement) de la licence ou d’un ayant cause dudit acheteur et, dans la présente partie, la mention de l’accomplissement d’un acte quelconque avec ou sans l’autorisation du droit d’auteur doit être interprétée de manière correspondante.

Titularité d’un droit d’auteur à venir

91. 1) Lorsque, en vertu d’un accord conclu au sujet d’un droit d’auteur futur et signé par le titulaire à venir du droit d’auteur ou en son nom, le titulaire à venir déclare céder (en tout ou en partie) le droit d’auteur futur à un tiers et que, au moment où le droit d’auteur prend naissance, le cessionnaire ou son ayant cause aurait le droit absolu d’exiger d’être investi de ce droit, celui-ci lui est reconnu en vertu des dispositions du présent article.

2) Dans la présente partie

on entend par “droit d’auteur futur” un droit d’auteur qui prendra ou pourra prendre naissance à l’égard d’une oeuvre ou d’une catégorie d’œuvres futures ou lors d’un événement futur; et

les termes “titulaire à venir” doivent être interprétés de manière correspondante et désignent aussi une personne qui pourrait prétendre ultérieurement au droit d’auteur en vertu d’un accord du type visé à l’alinéa 1).

3) Une licence accordée par un titulaire à venir du droit d’auteur est opposable à tout ayant cause de ce dernier pour les prérogatives (ou les futures prérogatives) afférentes à ce droit, sauf s’il s’agit d’un acheteur de bonne foi qui n’a pas été avisé (effectivement ou implicitement) de la licence ou d’un ayant cause dudit acheteur et, dans la présente partie, la mention de l’accomplissement d’un acte quelconque avec ou sans l’autorisation du titulaire du droit d’auteur doit être interprétée de manière correspondante.

Licences exclusives

92. 1) Dans la présente partie on entend par “licence exclusive” une licence constatée par écrit, signée par le titulaire du droit d’auteur ou en son nom et autorisant le preneur de licence, à l’exclusion de toute autre personne, y compris celle qui accorde la licence, à exercer un droit qui ne pourrait sinon être exercé que par le titulaire du droit d’auteur.

2) Le titulaire d’une licence exclusive jouit, à l’égard d’un ayant cause lié par la licence, des mêmes droits qu’à l’égard de la personne ayant accordé la licence.

Transmission du droit d’auteur par testament en même temps qu’une oeuvre non publiée

93. Lorsque, en vertu d’un legs à titre particulier ou universel, une personne a droit, en usufruit ou autrement, à

a) un document original ou toute autre pièce reproduisant ou contenant une oeuvre littéraire, dramatique. musicale ou artistique n’ayant pas été publiée avant le décès du testateur, ou

b) une pièce originale contenant un enregistrement sonore ou un film n’ayant pas été publié avant le décès du testateur.

le legs est, sauf intention contraire indiquée dans le testament ou dans un codicille, réputé comprendre le droit d’auteur sur l’oeuvre dans la mesure où le testateur était titulaire de ce droit immédiatement avant son décès.

Droit moral

Inaliénabilité du droit moral

94. Les droits conférés en vertu des dispositions du chapitre IV (droit moral) sont inaliénables.

Transmission du droit moral pour cause de mort

95. 1) Lors du décès d’une personne investie du droit conféré aux termes des dispositions de l’article 77 (droit d’être identifié en tant qu’auteur ou réalisateur), de l’article 80 (droit de s’opposer à toute atteinte à l’oeuvre) ou de l’article 85 (droit à la non-divulgation de certains films et photographies)

a) le droit est transmis à toute personne expressément désignée par voie de disposition testamentaire,

b) en l’absence de telles dispositions mais au cas où les droits patrimoniaux afférents à l’oeuvre en question font partie de la succession de l’intéressé, le droit est transmis à la personne à qui sont dévolus ces droits patrimoniaux, et

c) si ou dans la mesure où le droit n’est pas transmis en application des dispositions du sous-alinéa a) ou b), il peut être exercé par les exécuteurs testamentaires.

2) Lorsque les droits patrimoniaux compris dans une succession sont partagés entre deux personnes, par exemple au cas où un legs est limité de façon à s’appliquer

a) à l’un ou plusieurs, mais non à la totalité, des actes que le titulaire du droit d’auteur a le droit exclusif d’accomplir ou d’autoriser, ou

b) à une partie, mais non à la totalité, de la période correspondant à la durée de validité du droit d’auteur,

tout droit transmis en même temps que les droits patrimoniaux en vertu de l’alinéa 1) est partagé de manière correspondante.

3) Lorsque, en vertu des dispositions de l’alinéa 1)a)ou b), un droit est de nature à être exercé par plus d’une personne

a) il peut, s’agissant du droit conféré aux termes des dispositions de l’article 77 (droit d’être identifié en tant qu’auteur ou réalisateur), être revendiqué par l’une quelconque d’entre elles;

b) il peut, s’agissant du droit conféré aux termes des dispositions de l’article 80 (droit de s’opposer à toute atteinte à l’oeuvre) ou de l’article85 (droit à la non-divulgation de certains films et photographies), être exercé par chacune d’elles et est respecté par rapport à chacune d’elles si elle autorise les modifications ou l’acte en question; et

c) une renonciation à ce droit émanant de l’une d’elles, en application des dispositions de l’article 87, n’a aucune incidence sur les droits reconnus aux autres.

4) Une autorisation donnée ou une renonciation opérée précédemment est opposable à toute personne à qui est transmis un droit en vertu des dispositions de l’alinéa 1).

5) Toute atteinte portée au droit conféré aux termes des dispositions de l’article 84 (attribution abusive) après le décès d’une personne peut faire l’objet de poursuites de la part des exécuteurs testamentaires.

6) Tous dommages-intérêts recourvrés par les exécuteurs testamentaires en vertu des dispositions du présent article au titre d’une atteinte portée à un droit après le décès d’une personne sont transmissibles dans le cadre du patrimoine successoral au même titre que si le droit d’agir en justice avait subsisté et avait été reconnu à l’intéressé immédiatement avant son décès.

CHAPITRE VI RECOURS EN CAS D’ATTEINTE AU DROIT D’AUTEUR

Droits et moyens de recours du titulaire du titulaire du droit d’auteur

Atteintes au droit d’auteur susceptibles de poursuites de la part du titulaire du droit d’auteur

96. 1) Une atteinte au droit d’auteur peut faire l’objet de poursuites de la part du titulaire de ce droit.

2) Dans toute action intentée pour atteinte au droit d’auteur, le demandeur dispose des mêmes moyens de réparation — dommages-intérêts, ordonnances, reddition de comptes ou autres — qu’en cas d’atteinte à tout autre droit exclusif.

3) Le présent article est applicable sous réserve des dispositions suivantes du présent chapitre.

Dispositions relatives aux dommages-intérêts en cas d’atteinte au droit d’auteur

97. 1) Lorsque, dans une action intentée pour atteinte au droit d’auteur, il est démontré qu’au moment de l’acte incriminé, le défendeur ignorait et n’avait aucune raison de penser que l’oeuvre en cause était protégée, le demandeur ne peut prétendre à des dommages-intérêts à son encontre, sans préjudice toutefois de la possibilité d’obtenir toute autre réparation.

2) Dans une action intentée pour atteinte au droit d’auteur, le tribunal peut, compte tenu de toutes les circonstances du cas d’espèce et notamment

a) du caractère flagrant de l’infraction, et b) de tout profit que le défendeur a retiré de cette infraction,

allouer les dommages-intérêts supplémentaires qui lui paraissent justifiés en l’espèce.

Engagement de prendre une licence de plein droit à l’occasion de poursuites judiciaires

98. 1) Si, dans une procédure pour atteinte à un droit d’auteur pour l’exploitation duquel une licence peut être obtenue de plein droit en vertu des dispositions de l’article 144 (pouvoirs pouvant être exercés à la suite d’un rapport de la Commission des monopoles et des concentrations), le défendeur s’engage à prendre une licence aux conditions qui peuvent être convenues ou, à défaut d’accord, fixées par le tribunal du droit d’auteur en vertu dudit article,

a) aucune ordonnance n’est prononcée à son encontre, b) il n’est pas exigé que les objets soient remis en vertu de l’article99 , et c) le montant des dommages-intérêts qui lui sont imposés ou des bénéfices à

restituer après reddition de comptes ne peut être supérieur au double du montant qu’il aurait dû verser en tant que preneur de licence si une licence avait été accordée aux conditions précitées avant l’infraction la plus ancienne.

2) Un engagement peut être pris à tout moment avant l’ordonnance de clôture de la procédure, sans que cela implique aucune reconnaissance de responsabilité.

3) Aucune disposition du présent article n’a d’incidence sur les recours pouvant être exercés au titre d’une infraction commise avant que des licences de plein droit n’aient été prévues.

Ordonnance tendant à la remise de copies ou d’exemplaires contrefaits ou d’autres objets de contrefaçon

99. 1) Lorsqu’une personne

a) a en sa possession, sous sa garde ou sous sa surveillance, dans le cadre d’une activité commerciale, une copie ou un exemplaire contrefait d’une oeuvre, ou

b) a en sa possession, sous sa garde ou sous sa surveillance un objet spécialement conçu ou adapté pour faire des copies ou exemplaires contrefaits d’une oeuvre protégée donnée, tout en sachant ou en ayant des raisons de penser que cet objet a été ou est destiné à être utilisé pour faire des copies ou exemplaires contrefaits,

le titulaire du droit d’auteur sur l’oeuvre peut demander au tribunal d’ordonner que la copie ou l’exemplaire contrefait ou l’objet en question lui soit remis ou qu’il soit remis à toute autre personne désignée par le tribunal.

2) Une requête à cet effet ne peut être présentée après l’expiration du délai précisé à l’article 113 (délai de forclusion pour la remise d’objets de contrefaçon) et aucune ordonnance ne peut être prononcée si le tribunal ne rend pas également, ou n’estime pas qu’il existe des motifs de rendre, une ordonnance en vertu de l’article114(ordonnance relative à l’affectation des copies ou exemplaires contrefaits ou d’autres objets de contrefaçon).

3) Toute personne à qui une copie ou un exemplaire contrefait ou un autre objet de contrefaçon est remis en application d’une ordonnance prise en vertu du présent article doit, au cas où il n’a pas été rendu d’ordonnance en vertu de l’article 114, conserver cet objet jusqu’à ce qu’une ordonnance soit rendue, ou que la décision de ne pas rendre une telle ordonnance soit prise, en vertu dudit article.

4) Aucune disposition du présent article n’a d’incidence sur les autres prérogatives du tribunal.

Droit de saisir des copies ou exemplaires contrefaits et autres objets de contrefaçon

100. 1) Une copie ou un exemplaire contrefait d’une oeuvre, qui est présenté en vue de la vente ou de la location ou qui est d’une autre manière directement mis en vente ou en location et à l’égard duquel le titulaire du droit d’auteur serait habilité à demander qu’une ordonnance soit rendue en vertu de l’article99 , peut être saisi et conservé par ledit titulaire ou par toute personne autorisée par ce dernier.

Le droit de saisie et de mainmise peut être exercé sous réserve des conditions suivantes et de toute décision prise par le tribunal en vertu de l’article114.

2) Avant toute saisie en vertu des dispositions du présent article, l’heure et le lieu auxquels il est envisagé d’opérer cette saisie doivent être communiqués à un poste de police local.

3) Aux fins de l’exercice du droit conféré aux termes des dispositions du présent article, toute personne peut pénétrer dans des lieux auxquels le public a accès mais ne peut saisir aucun bien en la possession, sous la garde ou sous la surveillance d’une personne sur les lieux où celle-ci exerce à titre permanent ou régulier une activité industrielle ou commerciale et ne peut non plus faire usage de la force.

4) Lorsqu’une saisie est opérée en vertu du présent article, un avis établi sous la forme prescrite et contenant les mentions prescrites quant à la personne par laquelle ou

sur l’autorité de laquelle la saisie est opérée et les motifs sur lesquels elle repose doit être laissé sur les lieux.

5) Dans le présent article

le terme “lieu” désigne aussi tout terrain, bâtiment, structure mobile, véhicule, navire, aéronef ou aéroglisseur; et

on entend par “prescrit” prescrit par ordonnance du ministre.

6) Les ordonnances prises par le ministre aux termes des dispositions du présent article sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Droits et moyens de recours du preneur d’une licence exclusive

Droits et réparations

101. 1) Exception faite à l’égard du titulaire du droit d’auteur, le preneur d’une licence exclusive a les mêmes droits et peut prétendre aux mêmes réparations, en ce qui concerne les questions survenant après la délivrance de la licence, que si cette licence avait été une cession.

2) Ses droits et prétentions s’exercent concurremment à ceux du titulaire du droit d’auteur et, dans les dispositions pertinentes de la présente partie, les mentions du titulaire du droit d’auteur doivent être interprétées de manière correspondante.

3) Dans une action intentée par le preneur d’une licence exclusive en vertu des dispositions du présent article, le défendeur peut invoquer les mêmes moyens de défense que si l’action avait été intentée par le titulaire du droit d’auteur.

Exercice de droits concurrents

102. 1) Lorsqu’une action pour atteinte au droit d’auteur intentée par le titulaire du droit d’auteur ou par le preneur d’une licence exclusive a trait (entièrement ou partiellement) à une infraction à l’égard de laquelle ils ont concurremment le droit d’exercer une action en justice, le titulaire du droit d’auteur ou le titulaire de la licence exclusive, selon le cas, n’est pas recevable, sauf autorisation du tribunal, à poursuivre l’action à moins que l’autre partie ne soit appelée en cause en qualité de codemandeur ou en tant que défendeur.

2) Le titulaire du droit d’auteur ou le preneur d’une licence exclusive qui est appelé en cause en tant que défendeur en application des dispositions de l’alinéa 1) n’est pas tenu de payer de frais et dépens afférents à l’action à moins qu’il ne prenne part à la procédure.

3) Les dispositions qui précèdent ne s’opposent pas à l’octroi de réparations provisoires à la seule demande du titulaire du droit d’auteur ou du preneur d’une licence exclusive.

4) Lorsqu’une action intentée pour atteinte au droit d’auteur a trait (entièrement ou partiellement) à une infraction à l’égard de laquelle le titulaire du droit d’auteur et le

preneur d’une licence exclusive ont ou avaient concurremment le droit d’exercer une action en justice.

a) le tribunal fixe les dommages-intérêts compte tenu i) des conditions de la licence, et

ii) de toute réparation pécuniaire déjà accordée ou pouvant être demandée par l’un ou l’autre des intéressés pour ce qui concerne cette infraction;

b) aucune reddition de comptes en vue de la restitution des bénéfices n’est ordonnée en faveur de l’un des intéressés si des dommages-intérêts ont été attribués, ou la restitution des bénéfices ordonnée, en faveur de l’autre pour ce qui concerne l’infraction; et.

c) si une reddition de comptes en vue de la restitution des bénéfices est ordonnée, le tribunal procède à la répartition des bénéfices entre les intéressés de la façon qu’il juge équitable, sous réserve de tout accord conclu entre eux:

les présentes dispositions sont applicables indépendamment du fait que le titulaire du droit d’auteur et le preneur de la licence exclusive soient ou non l’un et l’autre parties à l’action.

5) Le titulaire du droit d’auteur avise tout preneur d’une licence exclusive ayant des droits concurrents avant de demander la délivrance d’une ordonnance en vertu de l’article 99 (ordonnance tendant à la remise de copies ou exemplaires contrefaits ou d’autres objets de contrefaçon) ou d’exercer le droit conféré aux termes des dispositions de l’article 100 (droit de saisie) et le tribunal peut, à la demande du preneur de la licence, rendre une ordonnance en vertu de l’article 99ou interdire ou autoriser, selon le cas, l’exercice, par le titulaire selon ce qui lui paraît équitable compte tenu des conditions de la licence.

Réparations en cas d’atteinte au droit moral

Réparations en cas d’atteinte au droit moral

103. 1) Toute atteinte à un droit conféré aux termes des dispositions du chapitre IV (droit moral) peut faire l’objet de poursuites en tant que manquement à une obligation légale envers le titulaire du droit considéré.

2) Dans une procédure pour atteinte au droit conféré aux termes des dispositions de l’article 80 (droit de s’opposer à toute atteinte à l’oeuvre), le tribunal peut, s’il le juge approprié dans le cas d’espèce, rendre une ordonnance interdisant l’accomplissement de tout acte en l’absence d’une mention rédigée dans les termes et selon les modalités jugées acceptables par le tribunal, dissociant l’auteur ou le réalisateur de la modification de l’oeuvre.

Présomptions

Présomptions relatives à des d’œuvres littéraires, dramatiques, musicales et artistiques

104. 1) Les présomptions suivantes sont applicables dans le cadre des procédures engagées en vertu du présent chapitre au sujet d’une oeuvre littéraire, dramatique, musicale ou artistique.

2) Lorsqu’un nom censé être celui de l’auteur figurait sur des copies ou exemplaires de l’oeuvre publiée ou sur l’oeuvre lors de sa création, la personne dont le nom était ainsi indiqué est présumée, jusqu’à preuve du contraire,

a) être l’auteur de l’oeuvre; b) avoir créé l’oeuvre dans des conditions ne relevant pas de l’application de

l’article 11.2), 163, 165 ou 168 (d’œuvres créées en cours d’emploi, droit d’auteur de la Couronne, droit d’auteur des Assemblées parlementaires ou droit d’auteur de certaines organisations internationales).

3) Dans le cas d’une oeuvre censée avoir été créée en collaboration, les dispositions de l’alinéa 1) sont applicables à l’égard de chacun des auteurs supposés.

4) Lorsqu’aucun nom censé être celui de l’auteur n’était indiqué de la façon précisée à l’alinéa 2) mais que

a) l’oeuvre est susceptible d’être protégée au titre du droit d’auteur en vertu des dispositions de l’article 155 (possibilité de protection en raison du pays de la première publication), et

b) un nom censé être celui de l’éditeur figurait sur des copies ou exemplaires de l’oeuvre lors de la première publication,

la personne dont le nom était ainsi indiqué est présumée, jusqu’à preuve du contraire, avoir été titulaire du droit d’auteur au moment de la publication.

5) Si l’auteur de l’oeuvre est décédé ou si l’identité de l’auteur ne peut être déterminée malgré des recherches suffisantes, il est présumé en l’absence de preuve contraire,

a) que l’oeuvre est une oeuvre originale, et b) que les allégations du demandeur concernant la première publication de

l’oeuvre et le pays de cette première publication sont fondées.

Présomptions relatives à des enregistrements sonores, des films et des programmes d’ordinateur

105. 1) Dans une procédure engagée en vertu du présent chapitre en ce qui concerne un enregistrement sonore, lorsque les copies de l’enregistrement mises en circulation dans le public sont munies d’une étiquette ou d’une autre marque précisant

a) qu’une personne dont le nom est indiqué était le titulaire du droit d’auteur sur l’enregistrement à la date de mise en circulation des copies, ou

b) que la première publication de l’enregistrement a eu lieu une année donnée ou dans un pays donné,

cette étiquette ou cette marque est recevable à titre de preuve des faits indiqués et est présumée comporter des mentions exactes jusqu’à preuve du contraire.

2) Dans une procédure engagée en vertu du présent chapitre en ce qui concerne un film, lorsque des copies du film mises en circulation dans le public sont munies d’une mention précisant

a) qu’une personne dont le nom est indiqué était l’auteur ou le réalisateur du film,

b) qu’une personne dont le nom est indiqué était le titulaire du droit d’auteur sur le film à la date de mise en circulation des copies, ou

c) que la première publication du film a eu lieu une année donnée ou dans un pays donné,

cette mention est recevable à titre de preuve des faits indiqués et est présumée exacte jusqu’à preuve du contraire.

3) Dans une procédure engagée en vertu du présent chapitre en ce qui concerne un programme d’ordinateur, lorsque des copies du programme mises en circulation dans le public sous forme électronique sont munies d’une mention précisant

a) qu’une personne dont le nom est indiqué était le titulaire du droit d’auteur sur le programme à la date de mise en circulation des copies, ou

b) que la première publication du programme a eu lieu dans un pays donné ou que des copies en ont pour la première fois été mises en circulation dans le public sous forme électronique au cours d’une année donnée,

cette mention est recevable à titre de preuve des faits indiqués et est présumée exacte jusqu’à preuve du contraire.

4) Les présomptions qui précèdent sont également valables dans les procédures relatives à une infraction qui aurait été commise avant la date à laquelle les copies ont été mises en circulation dans le public.

5) Dans une procédure engagée en vertu du présent chapitre en ce qui concerne un film, lorsque le film projeté en public, radiodiffusé ou programmé dans un service de câblodistribution comporte une mention indiquant

a) qu’une personne dont le nom est indiqué était l’auteur ou le réalisateur du film, ou

b) qu’une personne dont le nom est indiqué était le titulaire du droit d’auteur sur le film immédiatement avant la réalisation de celui-ci,

cette mention est recevable à titre de preuve des faits indiqués et est présumée exacte jusqu’à preuve du contraire.

Cette présomption est également valable dans les procédures relatives à une infraction qui aurait été commise avant la date à laquelle le film a été projeté en public, radiodiffusé ou programmé dans un service de câblodistribution.

Présomptions relatives aux d’œuvres protégées par un droit d’auteur appartenant à la Couronne

106. Dans une procédure engagée en vertu du présent chapitre en ce qui concerne une oeuvre littéraire, dramatique ou musicale protégée par un droit d’auteur appartenant à la Couronne, lorsque les exemplaires imprimés de l’oeuvre sont munis d’une mention indiquant l’année de la première publication de celle-ci dans le commerce, cette mention est recevable à titre de preuve des faits indiqués et est présumée exacte en l’absence de preuve contraire.

Délits

Responsabilité pénale liée à la fabrication et à l’exploitation d’objets de contrefaçon, etc.

107. 1) Se rend coupable d’un délit quiconque, sans l’autorisation du titulaire du droit d’auteur,

a) fabrique en vue de la vente ou de la location, ou b) importe au Royaume-Uni, si ce n’est pour son usage personnel et privé, ou c) a en sa possession dans le cadre d’une activité commerciale, en vue

d’accomplir un acte portant atteinte au droit d’auteur,

d) dans le cadre d’une activité commerciale i) vend ou loue, ou

ii) propose ou présente en vue de la vente ou de la location, ou

iii) expose en public, ou

iv) distribue, ou

e) distribue autrement que dans le cadre d’une activité commerciale mais de manière à porter préjudice au titulaire du droit d’auteur, un objet de contrefaçon en sachant ou en ayant des raisons de penser qu’il s’agit d’une copie ou d’un exemplaire contrefait d’une oeuvre protégée.

2) Se rend coupable d’un délit quiconque

a) fabrique un objet spécialement conçu ou adapté pour faire des copies ou exemplaires d’une oeuvre protégée donnée, ou

b) a en sa possession un objet de cette nature, en sachant ou en ayant des raisons de penser qu’il servira à faire des copies ou exemplaires contrefaits destinés à être vendus ou loués ou utilisés dans le cadre d’une activité commerciale.

3) En cas d’atteinte au droit d’auteur (autrement que par réception d’une émission de radiodiffusion ou d’un programme distribué par câble)

a) du fait de la représentation ou de l’exécution publique d’une oeuvre littéraire, dramatique ou musicale, ou

b) du fait de la diffusion ou de la projection publique d’un enregistrement sonore ou d’un film,

quiconque fait ainsi représenter ou exécuter, diffuser ou projeter l’oeuvre tout en sachant ou en ayant des raisons de penser qu’il y aura atteinte au droit d’auteur se rend coupable d’un délit.

4) Toute personne coupable d’un délit en vertu des dispositions de l’alinéa 1)a), b), d)iv) ou e) est passible

a) après condamnation en procédure simplifiée, d’une peine d’emprisonnement d’une durée de six mois au plus ou d’une amende n’excédant pas le maximum légal, ou de ces deux peines conjointement,

b) après condamnation à la suite d’une inculpation, d’une amende ou d’un emprisonnement d’une durée de deux ans au plus, ou de ces deux peines conjointement.

5) Quiconque se rend coupable d’un autre délit en vertu du présent article est passible, après condamnation en procédure simplifiée, d’un emprisonnement d’une durée de six mois au plus ou d’une amende à concurrence du degré 5 du barème général, ou de ces deux peines conjointement.

6) Les dispositions des articles 104 à 106 (présomptions touchant à diverses questions liées au droit d’auteur) ne sont pas applicables aux procédures relatives à un délit réprimé en vertu du présent article, sans préjudice de leur application dans le cadre de procédure tendant à obtenir la délivrance d’une ordonnance en vertu de l’article108 ci-après.

Ordonnance tendant à la remise de copies ou d’exemplaires contrefaits ou d’autres objets de contrefaçon dans le cadre d’une procédure pénale

108. 1) Le tribunal devant lequel une personne est poursuivie au titre d’un délit réprimé en vertu de l’article107 peut, s’il acquiert la conviction qu’au moment où elle a été arrêtée ou incriminée cette personne

a) avait en sa possession, sous sa garde ou sous sa surveillance, dans le cadre d’une activité commerciale, une copie ou un exemplaire contrefait d’une oeuvre protégée, ou

b) avait en sa possession, sous sa garde ou sous sa surveillance un objet spécialement conçu ou adapté pour faire des copies ou exemplaires d’une oeuvre protégée donnée, tout en sachant ou en ayant des raisons de penser que cet objet avait été ou était utilisé pour faire des copies ou exemplaires contrefaits,

ordonner que la copie ou l’exemplaire contrefait ou l’objet considéré soit remis au titulaire du droit d’auteur ou à toute autre personne désignée par le tribunal.

2) A cette fin, une personne est considérée comme incriminée

a) en Angleterre, au Pays de Galles et en Irlande du Nord, lorsqu’elle est incriminée verbalement ou fait l’objet d’une signification ou d’une inculpation;

b) en Ecosse, lorsqu’elle fait l’objet d’une mise en garde, d’une incrimination, d’une plainte ou d’une inculpation.

3) Le tribunal peut rendre une ordonnance de sa propre initiative ou à la demande du ministère public (prosecutor) (en Ecosse, Lord Advocate ou procurator-fiscal), indépendamment du fait que la personne soit ou non reconnue coupable du délit, mais en aucun cas

a) après l’expiration du délai précisé à l’article 113 (délai de forclusion pour la remise d’objets de contrefaçon), ou

b) s’il lui paraît improbable qu’une ordonnance soit rendue en vertu de l’article 114 (ordonnance relative à l’affectation de copies ou d’exemplaires contrefaits ou d’autres objets de contrefaçon).

4) Toute ordonnance rendue en vertu du présent article par un tribunal répressif inférieur (magistrates’s court) est susceptible de recours

a) en Angleterre et au Pays de Galles, devant la juridiction répressive supérieure (Crown Court), et

b) en Irlande du Nord devant le “county court”, en Ecosse, lorsqu’une ordonnance a été rendue en vertu du présent article, la personne à qui a été retiré la copie ou l’exemplaire contrefait ou l’objet de contrefaçon qui était en sa possession, sous sa garde ou sous sa surveillance peut, sans préjudice de toute autre voie de recours légale, faire appel de cette ordonnance dans les mêmes conditions que s’il s’agissait d’une condamnation.

5) Toute personne à qui est remis une copie ou un exemplaire contrefait ou un autre objet de contrefaçon en application d’une ordonnance rendue en vertu du présent article doit le conserver en attendant que soit rendue une ordonnance, ou que soit prise une décision de ne pas rendre d’ordonnance, en vertu de l’article114.

6) Aucune disposition du présent article ne porte atteinte aux pouvoirs reconnus au tribunal en vertu de l’article 43 de la loi de 1973 sur les pouvoirs des tribunaux répressifs (Powers of Criminal Courts Act 1973), de l’article 223 ou 436 de la loi de 1975 (Ecosse) sur la procédure pénale (Criminal Procedure (Scotland) Act 1975) ou de l’article7 de l’ordonnance de 1980 (Irlande du Nord) sur la justice pénale (Criminal Justice (Northern Ireland) Order 1980) (dispositions générales applicables en matière de confiscation dans le cadre de procédures pénales).

Mandats de perquisition

109. 1) Lorsqu’un juge de paix (en Ecosse “sheriff” ou “justice of the peace”) acquiert la conviction, à la suite d’une déclaration sous serment d’un fonctionnaire de police (constable) (en Ecosse, par “evidence on oath”), qu’il existe des motifs légitimes de supposer

a) qu’un délit réprimé en vertu de l’article107.1)a), b), d)iv) ou e) a été ou est sur le point d’être commis en quelque lieu que ce soit,

b) que la preuve que le délit a été ou est sur le point d’être commis se trouve en ce lieu,

il peut délivrer un mandat autorisant un fonctionnaire de police à pénétrer sur les lieux et à y perquisitionner, en ayant au besoin recours à la force.

2) Les pouvoirs conférés en vertu de l’alinéa 1) ne s’étendent pas, en Angleterre et au Pays de Galles, à la faculté d’autoriser une perquisition portant sur des objets du type visé à l’article 9.2) de la loi de 1984 sur les preuves en matière policière et pénale (certaines catégories d’objets de caractère personnel ou confidentiel).

3) Un mandat délivré en vertu du présent article

a) peut autoriser des personnes à accompagner le fonctionnaire chargé d’en assurer l’exécution, et

b) est valable pendant 28 jours à compter de la date de sa délivrance. 4) Le fonctionnaire chargé de l’exécution d’un mandat délivré en vertu du présent

article peut saisir un objet dont il a tout lieu de penser qu’il constitue la preuve qu’un délit réprimé en vertu de l’article107.1) a été ou est sur le point d’être commis.

5) Dans le présent article, le terme “lieu” désigne aussi tout terrain, bâtiment, structure mobile, véhicule, navire, aéronef ou aéroglisseur.

Délits commis par des personnes morales: responsabilité des dirigeants

110. 1) Lorsqu’il est prouvé qu’un délit réprimé en vertu de l’article107a été commis par une personne morale avec l’autorisation ou la complicité d’un directeur, d’un administrateur, d’un secrétaire ou d’un autre dirigeant, ou d’une personne prétendant agir à ce titre, l’intéressé et la personne morale sont l’un et l’autre coupables du délit et passibles de poursuites et des sanctions correspondantes.

2) Dans le cas d’une personne morale dont les activités sont gérées par ses membres, on entend par “directeur” un membre de la personne morale.

Dispositions tendant à interdire l’importation de copies ou d’exemplaires contrefaits

Possibilité de considérer les copies ou exemplaires contrefaits comme des marchandises interdites

111. 1) Le titulaire du droit d’auteur sur une oeuvre littéraire, dramatique ou musicale publiée peut aviser par écrit les commissaires des douanes et des contributions indirectes (Commissioners of Customs and Excise)

a) qu’il est le titulaire du droit d’auteur sur l’oeuvre, et b) qu’il demande aux commissaires, pendant la période précisée dans l’avis, de

considérer comme marchandises interdites les copies ou exemplaires de l’oeuvre qui sont contrefaits.

2) La période précisée dans l’avis en vertu des dispositions de l’alinéa 1) ne peut être supérieure à cinq ans ni s’étendre au-delà de la durée de protection de l’oeuvre.

3) Le titulaire du droit d’auteur sur un enregistrement sonore ou un film peut aviser par écrit les commissaires des douanes et des contributions indirectes

a) qu’il est le titulaire du droit d’auteur sur l’oeuvre, b) que des copies ou exemplaires contrefaits de l’oeuvre doivent parvenir au

Royaume-Uni aux date et lieu précisés dans l’avis, et

c) qu’il demande aux commissaires de considérer ces copies ou exemplaires comme des marchandises interdites.

4) Tant qu’un avis donné en vertu du présent article reste valable, l’importation des marchandises auxquelles il se rapporte à d’autres fins que pour l’usage personnel et privé est interdite; le non-respect de cette interdiction ne peut cependant entraîner d’autres sanctions que la confiscation des marchandises.

Pouvoir réglementaire des commissaires des douanes et des contributions indirectes

112. 1) Les commissaires des douanes et des contributions indirectes peuvent édicter des dispositions réglementaires fixant la forme sous laquelle doivent être donnés les avis prévus à l’article111 et exigeant que l’auteur de l’avis

a) remette aux commissaires, en même temps que l’avis ou lors de l’importation des marchandises, ou encore dans les deux cas, les preuves qui peuvent être précisées aux termes de ces mêmes dispositions, et

b) se conforme aux autres conditions qui peuvent également être précisées aux termes des dispositions en question.

2) Les dispositions réglementaires peuvent notamment exiger que toute personne qui a adressé un avis de cette nature

a) acquitte les droits qui peuvent être fixés à cet effet aux termes de ces mêmes dispositions;

b) donne les garanties qui peuvent être prescrites au titre des obligations ou dépenses pouvant incomber aux commissaires à la suite de l’avis, du fait de la détention de tout objet ou de l’accomplissement de tout acte par rapport à un objet ainsi détenu;

indemnise les commissaires au titre de toutes obligations ou dépenses ainsi assumées, qu’une garantie ait ou non été donnée.

3) Les dispositions réglementaires peuvent comporter des dispositions différentes selon les différentes catégories de cas auxquels elles s’appliquent ainsi que toute clause accessoire ou supplémentaire que les commissaires jugent utile.

4) Les dispositions réglementaires édictées en application du présent article sont susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

5) L’article 17 de la loi de 1979 sur les douanes et la gestion des contributions indirectes (dispositions générales concernant les recettes perçues par les commissaires) sont applicables aux droits acquittés en application de dispositions réglementaires

adoptées en vertu du présent article de même qu’aux recettes perçues en vertu de textes relatifs aux douanes et aux contributions indirectes.

Dispositions supplémentaires

Remise d’objets de contrefaçon: forclusion

113. 1) Une requête en vue de la délivrance d’une ordonnance en vertu de l’article 99 (ordonnance tendant à la remise de copies ou d’exemplaires contrefaits ou d’autres objets de contrefaçon dans le cadre d’une procédure civile) ne peut être présentée après l’expiration d’un délai de six ans à compter de la date à laquelle la copie ou l’exemplaire ou l’objet en question a été fabriqué, sous réserve des dispositions suivantes.

2) Si, pendant la totalité ou une partie de la période considérée, le titulaire du droit d’auteur

a) est frappé d’incapacité, ou b) est victime d’agissements frauduleux ou de dissimulations qui s’opposent à

ce qu’il puisse avoir connaissance des faits l’autorisant à demander la délivrance d’une ordonnance,

la requête peut être présentée à tout moment avant l’expiration d’un délai de six ans à compter de la date à laquelle l’incapacité a pris fin ou, selon le cas, à compter de la date à laquelle il était à même de découvrir les faits en prenant toutes mesures utiles.

3) A l’alinéa 2), le terme “incapacité” (“disability”) a) en Angleterre et au pays de Galles, a le même sens que dans la loi dite

Limitation Act de 1980; b) en Ecosse, désigne une incapacité légale au sens de la loi dite Prescription

and Limitation (Scotland) Act de 1973; c) en Irlande du Nord, a le même sens que dans la loi dite Statute of Limitations

(Northern Ireland) de 1958. 4) Une ordonnance selon l’article 108 (ordonnance tendant à la remise de copies ou

d’exemplaires contrefaits ou d’autres objets de contrefaçon dans le cadre d’une procédure pénale) ne peut en aucun cas être rendue après l’expiration d’un délai de six ans à compter de la date à laquelle la copie, l’exemplaire ou l’objet de contrefaçon en question a été fabriqué.

Ordonnance relative à l’affectation de copies ou d’exemplaires contrefaits ou d’autres objets de contrefaçon

114. 1) Le tribunal peut être saisi d’une requête l’invitant à rendre une ordonnance tendant à ce qu’une copie ou un exemplaire contrefait ou un autre objet de contrefaçon remis en application d’une ordonnance rendue en vertu de l’article99 ou 108, ou saisi et conservé en vertu du droit conféré aux termes des dispositions de l’article 100,

a) soit confisqué au profit du titulaire du droit d’auteur,

b) soit détruit ou qu’il en soit disposé de toute autre manière que le tribunal peut juger appropriée,

ou à décider de ne pas rendre d’ordonnance de cette nature.

2) Pour déterminer la nature de l’ordonnance à rendre (le cas échéant), le tribunal examine si d’autres réparations pouvant être obtenues à la suite d’une action pour atteinte au droit d’auteur seraient de nature à indemniser le titulaire du droit d’auteur et à protéger ses intérêts.

3) Le règlement du tribunal comporte des dispositions concernant la signification d’avis aux personnes ayant des droits sur la copie ou l’exemplaire ou les autres objets en question et chacune d’elles est habilitée

a) à intervenir dans la procédure de délivrance d’une ordonnance en vertu du présent article, qu’un avis lui ait ou non été signifié, et

b) à former un recours contre toute ordonnance rendue en vertu du présent article, qu’elle soit ou non intervenue dans la procédure;

en outre, une ordonnance ne prend effet qu’à l’expiration du délai de recours ou, si un recours est dûment formé avant l’expiration de ce délai, que lorsque ce recours a abouti à une décision définitive ou que la procédure y relative a été abandonnée.

4) Lorsque plusieurs personnes ont des droits sur une copie ou un exemplaire ou un autre objet, le tribunal peut rendre l’ordonnance qu’il estime équitable et peut (notamment) ordonner que l’objet soit vendu ou qu’il en soit disposé d’une autre manière et que le produit de l’opération soit réparti entre les intéressés.

5) Si le tribunal décide de ne pas rendre d’ordonnance en vertu du présent article, la personne en la possession de laquelle ou sous la garde ou la surveillance de laquelle se trouvait la copie ou l’exemplaire ou l’autre objet avant d’être remis ou saisi peut en exiger la restitution.

6) Dans le présent article, la mention d’une personne ayant des droits sur une copie ou un exemplaire ou un autre objet doit être interprétée comme visant aussi toute personne en faveur de laquelle une ordonnance pourrait être rendue en ce qui concerne celui-ci, soit en vertu du présent article, soit en vertu de l’article204ou 231 de la présente loi ou encore de l’article 58C de la loi de 1938 sur les marques (qui comporte des dispositions comparables en ce qui concerne les atteintes aux droits afférents à des représentations ou exécutions, des modèles et des marques).

Compétence des “county court” et “sheriff court”

115. 1) En Angleterre, au pays de Galles et en Irlande du Nord, un county court peut connaître des procédures engagées en vertu

de l’article 99 (ordonnance tendant à la remise de copies ou d’exemplaires contrefaits ou d’autres objets de contrefaçon),

de l’article 102.5) (ordonnance concernant l’exercice des droits du titulaire du droit d’auteur lorsque le preneur d’une licence exclusive a des droits concurrents, ou

de l’article 114 (ordonnance relative à l’affectation de copies ou d’exemplaires contrefaits ou d’autres objets de contrefaçon),

lorsque la valeur des copies ou exemplaires contrefaits et des autres objets en question ne dépasse pas le montant limite déterminant la compétence du county court en matière de responsabilité civile.

2) En Ecosse, les procédures tendant à obtenir une ordonnance en vertu des dispositions précitées peuvent être engagées devant le sheriff court.

3) Aucune disposition du présent article ne saurait être interprétée comme ayant une incidence sur la compétence de la Haute Cour (High Court) ou, en Ecosse, de la Court of Session.

SOMMAIRE

PREMIÈRE PARTIE — DROIT D’AUTEUR (suite)

CHAPITRE VII LICENCES EN MATIÈRE DE DROIT D’AUTEUR

Barèmes de licences et organismes accordant des licences

Article 116. Barèmes de licences et organismes accordant des licences

Saisine du tribunal du droit d’auteur à propos de barèmes de licences

117. Barèmes de licences auxquels les articles 118 à 123 sont applicables

118. Projets de barèmes de licences

119. Barèmes de licences

120. Renvoi d’un barème devant le tribunal

121. Demande de licence dans le cadre d’un barème de licences

122. Demande de révision d’une décision relative au droit d’obtenir une licence

123. Effet des décisions du tribunal concernant les barèmes de licences

Saisine du tribunal du droit d’auteur à propos de licences concédées par des organismes accordant des licences

124. Licences auxquelles s’appliquent les articles 125 à 128

125. Projets de licences

126. Licence venant à expiration

127. Demande de révision d’une décision relative à une licence

128. Effet des décisions du tribunal concernant des licences

Facteurs à prendre en considération dans certaines catégories de cas

129. Considérations d’ordre général: discrimination injustifiée

130. Licences en vue d’une reproduction reprographique

131. Licences en faveur des établissements d’enseignement pour des d’œuvres comprises dans des émissions de radiodiffusion ou dans des programmes distribués par câble

132. Prise en compte dans les licences des conditions imposées par les organisateurs de manifestations

133. Prise en compte dans les licences des versements effectués au titre des droits principaux

134. Licences relatives à des d’œuvres comprises dans des retransmissions

135. Caractère non exhaustif des dispositions concernant les éléments particuliers à prendre en considération

Obligation implicite d’indemnisation dans le cadre de barèmes de licences ou de licences de reproduction reprographique

136. Obligation implicite d’indemnisation dans le cadre de certains barèmes de licences et de licences de reproduction reprographique

Reproduction reprographique par les établissements d’enseignement

137. Pouvoir d’étendre le champ d’application du barème ou de la licence

138. Modification ou annulation d’une ordonnance étendant le champ d’application du barème ou de la licence

139. Recours contre les ordonnances

140. Enquête concernant la nécessité d’un nouveau barème ou d’une licence générale

141. Licence légale lorsqu’il n’est pas donné suite à la recommandation

Redevances ou autres sommes exigibles au titre de la location de certaines d’œuvres

142. Redevances ou autres sommes exigibles au titre de la location d’enregistrements sonores, de films ou de programmes d’ordinateur

Certification des barèmes de licences

143. Certification des barèmes de licences

Pouvoirs pouvant être exercés à la suite d’un rapport sur la concurrence

144. Pouvoirs pouvant être exercés à la suite d’un rapport de la Commission des monopoles et des concentrations

CHAPITRE VIII LE TRIBUNAL DU DROIT D’AUTEUR

Le tribunal

145. Le tribunal du droit d’auteur

146. Dispositions applicables aux membres du tribunal

147. Dispositions d’ordre pécuniaire

148. Composition aux fins d’une procédure

Compétence et procédure

149. Compétence du tribunal

150. Pouvoir général d’édicter des règlements

151. Frais et dépens, preuve des décisions, etc.

Recours

152. Saisine de la cour sur un point de droit

CHAPITRE IX CONDITIONS D’APPLICATION ET ÉTENDUE DE LA PROTECTION CONFÉRÉE AU TITRE DU DROIT D’AUTEUR

Conditions d’application de la protection

153. Conditions d’application de la protection

154. Conditions d’application par rapport à l’auteur

155. Conditions d’application par rapport au pays de la première publication

156. Conditions d’application par rapport au lieu de la transmission

Etendue et application de la présente partie

157. Pays auxquels s’étend la présente partie

158. Pays n’ayant plus le statut de colonie

159. Application des dispositions de la présente partie aux pays auxquels elle ne s’étend pas

160. Refus de la protection aux citoyens de pays n’assurant pas une protection adéquate aux d’œuvres britanniques

Dispositions supplémentaires

161. Eaux territoriales et plateau continental

162. Navires, aéronefs et aéroglisseurs britanniques

CHAPITRE X DISPOSITIONS DIVERSES ET GÉNÉRALES

Droit d’auteur de la Couronne et des Assemblées parlementaires

163. Droit d’auteur de la Couronne

164. Droit d’auteur sur les lois et mesures

165. Droit d’auteur des Assemblées parlementaires

166. Droit d’auteur sur les projets ou propositions de loi

167. Chambres du Parlement: dispositions complémentaires concernant le droit d’auteur

Autres dispositions diverses

168. Droit d’auteur reconnu à certaines organisations internationales

169. Folklore, etc.: d’œuvres anonymes non publiées

Dispositions transitoires et réserves

170. Dispositions transitoires et réserves

171. Droits et privilèges découlant d’autres textes en vigueur ou de la common law

Interprétation

172. Dispositions générales relatives à l’interprétation

173. Interprétation des mentions du titulaire du droit d’auteur

174. Signification des termes “établissements d’enseignement” et d’expressions voisines

175. Signification des termes “publication” et “publication commerciale”

176. Exigence de signature: application dans le cas des personnes morales

177. Adaptation d’expressions pour l’Ecosse

178. Définitions annexes

179. Index des termes faisant l’objet d’une définition

DEUXIÈME PARTIE DROITS AFFÉRENTS AUX PRESTATIONS DES ARTISTES INTERPRÈTES OU EXÉCUTANTS

Dispositions liminaires

180. Droits conférés aux artistes interprètes ou exécutants et aux titulaires des droits d’enregistrement

Droits des artistes interprètes ou exécutants

181. Prestations protégées

182. Autorisation nécessaire pour l’enregistrement ou la transmission en direct d’une prestation

183. Atteinte aux droits d’un artiste interprète ou exécutant résultant de l’utilisation d’un enregistrement réalisé sans autorisation

184. Atteinte aux droits d’un artiste interprète ou exécutant résultant de l’importation, de la détention ou de l’exploitation d’un enregistrement illicite

Droits des titulaires des droits d’enregistrement

185. Contrats d’exclusivité en matière d’enregistrement et titulaires des droits d’enregistrement

186. Autorisation requise pour l’enregistrement d’une prestation faisant l’objet d’un contrat d’exclusivité

187. Atteinte aux droits d’enregistrement résultant de l’utilisation d’un enregistrement réalisé sans autorisation

188. Atteinte aux droits d’enregistrement résultant de l’importation, de la détention ou de l’exploitation d’un enregistrement illicite

Exceptions aux droits conférés

189. Actes autorisés malgré les droits conférés aux termes des dispositions de la présente partie

190. Pouvoir du tribunal de donner l’autorisation au nom de l’artiste interprète ou exécutant dans certains cas

Durée et transmission des droits; autorisation

191. Durée des droits

192. Transmission des droits

193. Autorisation

Recours en cas d’atteinte aux droits

194. Atteinte aux droits susceptible de poursuites en tant que manquement à une obligation légale

195. Ordonnance tendant à la remise d’enregistrements illicites

196. Droit de saisir des enregistrements illicites

197. Signification de l’expression “enregistrement illicite”

Délits

198. Responsabilité pénale liée à la réalisation, à l’exploitation ou à l’utilisation d’enregistrements illicites

199. Ordonnance tendant à la remise d’enregistrements illicites dans le cadre d’une procédure pénale

200. Mandats de perquisition

201. Déclaration mensongère quant à la compétence pour donner une autorisation

202. Délits commis par des personnes morales: responsabilité des dirigeants

Dispositions supplémentaires concernant la remise et la saisie d’enregistrements illicites

203. Remise d’enregistrements illicites: forclusion

204. Ordonnance relative à l’affectation d’enregistrements illicites

205. Compétence des “county court” et “sheriff court”

Conditions d’application et étendue de la protection

206. Pays et personnes physiques et morales remplissant les conditions requises

207. Pays auxquels s’étend la présente partie

208. Pays jouissant de la réciprocité en matière de protection

209. Eaux territoriales et plateau continental

210. Navires, aéronefs et aéroglisseurs britanniques

Interprétation

211. Termes ayant le même sens que dans les dispositions relatives au droit d’auteur

212. Index de termes faisant l’objet d’une définition

CHAPITRE VII LICENCES ENMATIÈRE DE DROIT D’AUTEUR

Barèmes de licences et organismes accordant des licences

Barèmes de licences et organismes accordant des licences

116. 1) Dans la présente partie, on entend par “barème de licences” un barème énonçant

a) les catégories de cas dans lesquels l’organisme qui applique le barème, ou la personne qu’il représente, est disposé à accorder des licences en matière de droit d’auteur, et

b) les conditions auxquelles des licences seraient accordées dans ces catégories de cas;

à cette fin, le terme “barème” désigne aussi tout ce qui peut être assimilé à un barème, quelle qu’en soit la dénomination — barème, tarif ou autre.

2) Dans le présent chapitre, on entend par “organisme accordant des licences” une société ou un autre organisme ayant exclusivement ou essentiellement pour objet de négocier ou d’accorder, à titre de titulaire ou de titulaire à venir du droit d’auteur ou de représentant de ce dernier, des licences en matière de droit d’auteur, y compris des licences s’appliquant aux d’œuvres de plusieurs auteurs.

3) Dans le présent article, on entend par “licences en matière de droit d’auteur” des licences permettant d’accomplir tout acte réservé au titre du droit d’auteur ou d’en autoriser l’accomplissement.

4) Dans le présent chapitre, la mention de licences ou de barèmes de licences s’appliquant aux d’œuvres de plusieurs auteurs ne doit pas être interprétée comme visant aussi les licences ou barèmes de licences s’appliquant uniquement

a) à une seule oeuvre collective ou à plusieurs d’œuvres collectives dont les auteurs sont les mêmes, ou

b) aux d’œuvres créées par une même personne, entreprise ou société ou un même groupe de sociétés ou par ses employés, ou sur commande de la personne, de l’entreprise, de la société ou du groupe de sociétés en question.

A cet effet, on entend par groupe de sociétés une société de holding et ses filiales au sens de l’article 736 de la loi de 1985 sur les sociétés.

Saisine du tribunal du droit d’auteur à propos de barèmes de licences

Barèmes de licences auxquels les articles 118 à 123 sont applicables

117. Les articles 118 à 123 (saisine du tribunal du droit d’auteur à propos de barèmes de licences) sont applicables

a) aux barèmes de licences appliqués par des organismes accordant des licences en ce qui concerne le droit d’auteur sur des d’œuvres littéraires, dramatiques, musicales ou artistiques ou des films (ou des pistes sonores associées à des films) et s’étendant aux d’œuvres de plusieurs auteurs, dans la mesure où ils ont trait à des licences permettant de

i) reproduire l’oeuvre,

ii) représenter ou exécuter, diffuser ou projeter l’oeuvre en public, ou

iii) radiodiffuser l’oeuvre ou la programmer dans un service de câblodistribution;

b) à tous les barèmes de licences se rapportant au droit d’auteur sur des enregistrements sonores (à l’exclusion des pistes sonores associées à des films), des émissions de radiodiffusion ou des programmes distribués par câble, ou sur la présentation typographique d’éditions publiées; et

c) à tous les barèmes de licences se rapportant au droit d’auteur sur des enregistrements sonores, des films ou des programmes d’ordinateur, dans la mesure où ils ont trait à des licences en vue de la location de copies au public;

dans les articles précités, on entend par “barème de licences” un barème relevant de l’une de ces catégories.

Projets de barèmes de licences

118. 1) Les conditions d’un barème de licences qu’un organisme accordant des licences propose de mettre en application peuvent être soumises au tribunal du droit d’auteur par toute organisation prétendant représenter des personnes déclarant demander des licences dans des cas entrant dans une catégorie à laquelle le barème serait applicable, soit de façon générale soit par rapport à toute catégorie de cas.

2) Le tribunal doit d’abord se prononcer sur la recevabilité du recours et peut refuser de prendre celui—ci en considération s’il le juge prématuré.

3) Si le tribunal estime le recours recevable, il examine la question qui lui est soumise et confirme ou modifie le projet de barème, soit de façon générale, soit dans la mesure où celui—ci a trait à des cas entrant dans la catégorie visée dans le recours, en se prononçant de la manière qu’il estime équitable en l’espèce.

4) La décision du tribunal peut être prise de manière à demeurer en vigueur soit pour une durée indéterminée soit pendant la période fixée par le tribunal.

Barèmes de licences

119. 1) Si, pendant qu’un barème de licences est en vigueur, un différend s’élève entre l’organisme qui applique le barème et

a) une personne déclarant demander une licence dans un cas entrant dans une catégorie visée dans le barème, ou

b) une organisation prétendant représenter les personnes qui demandent des licences dans ces conditions,

la personne ou l’organisation considérée peut soumettre le barème au tribunal du droit d’auteur dans la mesure où ce barème a trait à des cas entrant dans la catégorie précitée.

2) Un barème ayant été soumis au tribunal en vertu des dispositions du présent article demeure en vigueur jusqu’à la conclusion de la procédure relative au recours.

3) Le tribunal examine la question en litige et se prononce de la façon qu’il estime équitable en l’espèce, en confirmant ou en modifiant le barème, dans la mesure où celui—ci a trait à des cas entrant dans la catégorie visée dans le recours.

4) La décision du tribunal peut être prise de manière à demeurer en vigueur soit pour une durée indéterminée soit pendant la période fixée par le tribunal.

Renvoi d’un barème devant le tribunal

120. 1) Lorsque, à l’occasion d’un précédent recours en vertu de l’article118ou 119, ou en vertu du présent article, le tribunal du droit d’auteur a déjà rendu une décision au sujet d’un barème de licences,

a) l’organisme appliquant le barème, b) une personne déclarant demander une licence dans un cas entrant dans une

catégorie visée dans la décision, ou

c) une organisation prétendant représenter les personnes qui demandent des licences dans ces conditions.

peut, tant que la décision reste valable, renvoyer le barème devant le tribunal dans la mesure où il se rapporte à des cas entrant dans la catégorie précitée.

2) Sauf autorisation spéciale du tribunal, un barème de licences ne peut être renvoyé devant le tribunal pour des cas entrant dans la même catégorie

a) avant l’expiration d’un délai de 12 mois à compter de la date de la décision portant sur le recours précédent, ou

b) si la décision a été prise pour une durée ne dépassant pas 15 mois, plus de trois mois avant la date à laquelle elle doit cesser de produire effet.

3) Un barème ayant fait l’objet d’un renvoi devant le tribunal en vertu du présent article demeure en vigueur jusqu’à la conclusion de la procédure relative au renvoi.

4) Le tribunal examine la question en litige et se prononce de la façon qu’il estime équitable en l’espèce, en confirmant ou en modifiant le barème, dans la mesure où celui—ci a trait à des cas entrant dans la catégorie visée dans le renvoi.

5) La décision du tribunal peut être prise de manière à demeurer en vigueur soit pour une durée indéterminée soit pendant la période fixée par le tribunal.

Demande de licence dans le cadre d’un barème de licences

121. 1) Quiconque fait valoir que, dans un cas visé dans un barème de licences, l’organisme qui applique le barème a refusé de lui accorder ou de lui procurer une licence conformément aux dispositions de ce barème, ou ne lui a pas accordé ou procuré cette licence dans un délai raisonnable, peut saisir le tribunal du droit d’auteur.

2) Quiconque fait valoir, dans un cas non visé dans un barème de licences, que l’organisme qui applique le barème

a) a refusé de lui accorder ou de lui procurer une licence, ou ne la lui a pas accordée ni procurée dans un délai raisonnable et que, en l’espèce, il est abusif qu’une licence ne soit pas accordée, ou

b) propose des conditions de licence abusives, peut saisir le tribunal du droit d’auteur.

3) Aux fins de l’alinéa 2), un cas est réputé ne pas être visé dans un barème de licences si

a) le barème prévoit la concession de licences sous réserve de certaines exceptions et le cas considéré relève d’une telle exception, ou

b) le cas considéré est si semblable à ceux dans lesquels des licences sont accordées en vertu du barème qu’il est abusif de ne pas l’assimiler à ceux— ci.

4) Si le tribunal est convaincu que les prétentions du requérant sont fondées, il rend une décision précisant, pour ce qui concerne les questions qui y sont visées, que le requérant est habilité à obtenir une licence aux conditions que le tribunal peut estimer applicables conformément au barème de licences ou, selon le cas, raisonnables en l’espèce.

5) La décision du tribunal peut être prise de manière à demeurer en vigueur soit pour une durée indéterminée soit pendant la période fixée par le tribunal.

Demande de révision d’une décision relative au droit d’obtenir une licence

122. 1) Lorsque le tribunal du droit d’auteur a rendu, en vertu de l’article121, une décision aux termes de laquelle une personne a été déclarée habilitée à obtenir une licence en vertu d’un barème de licences, l’organisme appliquant le barème ou le requérant initial peut demander au tribunal de reconsidérer sa décision.

2) Sauf autorisation spéciale du tribunal, une demande de révision ne peut être adressée

a) avant l’expiration d’un délai de 12 mois à compter de la date de la décision, ou de la décision portant sur une demande antérieure présentée en vertu du présent article, ou

b) si la décision a été prise pour une durée ne dépassant pas 15 mois ou, par suite de la décision rendue au sujet d’une précédente demande présentée en vertu du présent article, doit cesser de produire effet dans les 15 mois suivant ladite décision, plus de trois mois avant la date à laquelle elle doit cesser de produire effet.

3) A la suite d’une demande de révision, le tribunal confirme ou modifie sa décision, selon ce qui peut lui paraître équitable compte tenu des conditions applicables aux termes du barème de licences ou, selon le cas, des circonstances du cas d’espèce.

Effet des décisions du tribunal concernant les barèmes de licences

123. 1) Un barème de licences qui a été confirmé ou modifié par le tribunal du droit d’auteur

a) en vertu de l’article118 (recours touchant aux conditions définies dans un projet de barème), ou

b) en vertu de l’article 119 ou 120 (recours concernant un barème en vigueur), demeure en vigueur ou, selon le cas, en application, dans la mesure où il a trait à la catégorie de cas visée dans la décision, tant que cette décision reste valable.

2) Tant que la décision est valable, quiconque, dans un cas entrant dans une catégorie visée dans la décision,

a) verse à l’organisme appliquant le barème tous droits ou redevances exigibles en vertu du barème au titre d’une licence s’appliquant au cas en question ou, si le montant à acquitter ne peut être déterminé, s’engage envers l’organisme appliquant le barème à acquitter ces droits ou redevances lorsqu’ils seront fixés, et

b) satisfait aux autres conditions applicables à cette licence en vertu du barème, est réputé, au regard de toute atteinte au droit d’auteur, avoir été, à toutes les dates utiles, titulaire d’une licence accordée par le titulaire du droit d’auteur en question en application du barème.

3) Le tribunal peut ordonner que, dans la mesure où elle modifie le montant des droits ou redevances à acquitter, la décision prenne effet rétroactivement, mais en aucun cas à compter d’une date antérieure à celle du recours ou, si elle est plus récente, à celle à laquelle le barème est entré en vigueur.

Si le tribunal se prononce en ce sens

a) tous les remboursements ou versements complémentaires nécessaires par rapport aux droits ou redevances déjà acquittés doivent être effectués, et

b) à l’alinéa 2)a), la mention des droits ou redevances exigibles en vertu du barème doit être interprétée comme visant les droits ou redevances exigibles en vertu de la décision.

Aucune instruction de cette nature ne peut être donnée lorsque les dispositions de l’alinéa 4) ci-après sont applicables.

4) Une décision rendue par le tribunal en vertu de l’article 119ou 120 au sujet d’un barème certifié à toutes fins utiles en vertu de l’article143prend effet, dans la mesure où elle modifie le barème en réduisant le montant des droits ou redevances exigibles au titre des licences, à compter de la date de la saisine du tribunal.

5) Lorsque le tribunal s’est prononcé en vertu de l’article 121(au sujet du droit à une licence en vertu d’un barème de licences) et que sa décision demeure valable, la personne en faveur de laquelle cette décision a été rendue est réputée, au regard de toute atteinte au droit d’auteur, avoir été, à toutes les dates utiles, titulaire d’une licence accordée par le titulaire du droit d’auteur en question aux conditions précisées dans la décision, si elle

a) verse à l’organisme appliquant le barème tous droits ou redevances exigibles en application de la décision ou, si le montant à acquitter ne peut être déterminé, s’engage à acquitter ces droits ou redevances lorsqu’ils seront fixés, et

b) satisfait aux autres conditions précisées dans la décision.

Saisine du tribunal du droit d’auteur à propos de licences concédées par des organismes accordant des licences

Licences auxquelles s’appliquent les articles 125 à 128

124. Les dispositions des articles 125 à 128 (saisine du tribunal du droit d’auteur à propos de licences concédées par des organismes accordant des licences) sont applicables aux catégories suivantes de licences concédées par un organisme accordant des licences autrement qu’en application d’un barème de licences

a) licences relatives au droit d’auteur sur des d’œuvres littéraires, dramatiques, musicales ou artistiques ou sur des films (ou des pistes sonores associées à des films) qui s’étendent aux d’œuvres de plusieurs auteurs, dans la mesure où elles permettent de

i) reproduire l’oeuvre,

ii) représenter ou exécuter, diffuser ou projeter l’oeuvre en public, ou

iii) radiodiffuser l’oeuvre ou la programmer dans un service de câblodistribution;

b) toute licence relative au droit d’auteur sur un enregistrement sonore (à l’exclusion d’une piste sonore associée à un film), une émission de radiodiffusion ou un programme distribué par câble, ou sur la présentation typographique d’une édition publiée; et

c) toutes les licences se rapportant au droit d’auteur sur des enregistrements sonores, des films ou des programmes d’ordinateur dans la mesure où elles ont trait à la location de copies au public;

dans les articles précités, on entend par “licence” une licence relevant de l’une de ces catégories.

Projets de licences

125. 1) Les conditions auxquelles un organisme compétent propose d’accorder une licence peuvent être soumises au tribunal du droit d’auteur par le preneur de licence potentiel.

2) Le tribunal doit d’abord se prononcer sur la recevabilité du recours et peut refuser de prendre celui—ci en considération s’il le juge prématuré.

3) Si le tribunal estime le recours recevable, il examine les conditions de la licence proposée et les confirme ou les modifie en se prononçant de la manière qu’il peut estimer équitable en l’espèce.

4) La décision du tribunal peut être prise de manière à demeurer en vigueur soit pour une durée indéterminée soit pendant la période fixée par le tribunal.

Licence venant à expiration

126. 1) Le titulaire d’une licence venant à expiration, par échéance du terme ou par suite d’une notification adressée par l’organisme compétent, peut saisir le tribunal du droit d’auteur en faisant valoir qu’en l’espèce il est injustifié de mettre fin à la licence.

2) Aucune requête à cet effet ne peut être présentée avant les trois derniers mois précédant la date à laquelle la licence doit venir à expiration.

3) Une licence à propos de laquelle le tribunal a été saisi reste en vigueur jusqu’à la conclusion de la procédure relative au recours.

4) Si le tribunal estime la requête fondée, il rend une décision confirmant le droit du preneur de licence de continuer de bénéficier de cette licence aux conditions que le tribunal peut estimer équitables en l’espèce.

5) La décision du tribunal peut être prise de manière à demeurer en vigueur soit pour une durée indéterminée soit pendant la période fixée par le tribunal.

Demande de révision d’une décision relative à une licence

127. 1) Lorsque le tribunal du droit d’auteur a rendu une décision en vertu de l’article 125 ou 126, l’organisme accordant la licence ou la personne intéressée peut demander au tribunal de reconsidérer cette décision.

2) Sauf autorisation spéciale du tribunal, une demande de révision ne peut être adressée

a) avant l’expiration d’un délai de 12 mois à compter de la date de la décision, ou de la décision portant sur une demande antérieure présentée en vertu du présent article, ou

b) si la décision a été prise pour une durée ne dépassant pas 15 mois ou, par suite de la décision rendue au sujet d’une précédente demande présentée en vertu du présent article, doit cesser de produire effet dans les 15 mois suivant ladite décision. plus de trois mois avant la date à laquelle elle doit cesser de produire effet.

3) A la suite d’une demande de révision, le tribunal confirme ou modifie sa décision, selon ce qui peut lui paraître équitable en l’espèce.

Effet des décisions du tribunal concernant des licences

128. 1) Lorsque le tribunal du droit d’auteur a rendu, en vertu de l’article125ou 126, une décision qui demeure valable, la personne en faveur de laquelle cette décision a été rendue est réputée, au regard de toute atteinte au droit d’auteur, avoir été, à toutes les dates utiles, titulaire d’une licence accordée par le titulaire du droit d’auteur en question aux conditions précisées dans la décision, si elle

a) verse à l’organisme accordant la licence tous droits ou redevances exigibles en application de la décision ou, si le montant à acquitter ne peut être déterminé, s’engage à acquitter ces droits ou redevances lorsqu’ils seront fixés, et

b) satisfait aux autres conditions précisées dans la décision. 2) Le bénéfice des dispositions de la décision peut être transmis

a) s’agissant d’une décision rendue en vertu de l’article125, si cette transmission n’est pas interdite aux termes de la décision du tribunal; et

b) s’agissant d’une décision rendue en vertu de l’article126, si cette transmission n’est pas interdite aux termes de la licence initiale.

3) Le tribunal peut ordonner qu’une décision rendue en vertu de l’article125ou 126, ou une décision modifiant cette dernière en vertu de l’article127 , dans la mesure où elle modifie le montant des droits ou redevances à acquitter, prenne effet rétroactivement, mais en aucun cas à compter d’une date antérieure à celle du recours ou de la demande ou, si elle est plus récente, à celle à laquelle la licence a été accordée ou, selon le cas, devait arriver à expiration.

Si le tribunal se prononce en ce sens

a) tous les remboursements ou versements complémentaires nécessaires par rapport aux droits ou redevances déjà acquittés doivent être effectués, et

b) à l’alinéa 1)a) la mention des droits ou redevances exigibles en application de la décision doit être interprétée, lorsque la décision est modifiée par une décision ultérieure, comme visant les droits ou redevances exigibles en vertu de la décision ultérieure.

Facteurs à prendre en considération dans certaines catégories de cas

Considérations d’ordre général: discrimination injustifiée

129. Pour déterminer les mesures devant être considérées comme équitables, à l’occasion d’un recours formé ou d’une demande présentée en vertu du présent chapitre au regard d’un barème de licences ou d’une licence, le tribunal du droit d’auteur prend en considération

a) l’existence d’autres barèmes, ou la concession d’autres licences, en faveur d’autres personnes dans des cas comparables, et

b) les conditions de ces barèmes ou licences, et veille à ce qu’il n’y ait aucune discrimination injustifiée entre les titulaires, ou les titulaires potentiels, de licences en vertu du barème auquel, ou de la licence à laquelle, se rapporte le recours ou la demande, d’une part, et les titulaires de licences au titre d’autres barèmes appliqués, ou d’autres licences accordées, par la même personne, d’autre part.

Licences en vue d’une reproduction reprographique

130. Lorsque le tribunal du droit d’auteur est saisi d’un recours ou d’une demande en vertu du présent chapitre au sujet de la concession de licences en vue de la reproduction reprographique d’œuvres littéraires, dramatiques, musicales ou artistiques publiées, ou de la présentation typographique d’éditions publiées, il prend en considération

a) la mesure dans laquelle il est par ailleurs possible d’obtenir des éditions publiées de l’oeuvre en question,

b) la proportion de l’oeuvre à reproduire, et c) la nature de l’utilisation qui doit être faite des reproductions.

Licences en faveur des établissements d’enseignement pour des d’œuvres comprises dans des émissions de radiodiffusion ou dans des programmes distribués par câble

131. 1) Les dispositions du présent article sont applicables aux recours formés et aux demandes présentées en vertu du présent chapitre en ce qui concerne des licences en vue de l’enregistrement, par des établissements d’enseignement ou pour leur compte, d’émissions de radiodiffusion ou de programmes distribués par câble comprenant des d’œuvres protégées, ou en vue de la réalisation de copies de ces enregistrements, aux fins de l’enseignement.

2) Pour déterminer le montant des droits ou redevances exigibles (le cas échéant) au titre d’une licence, le tribunal du droit d’auteur tient compte de la mesure dans laquelle les titulaires du droit d’auteur sur les d’œuvres comprises dans l’émission ou dans le programme ont déjà été rémunérés, ou peuvent prétendre à une rémunération, au titre de l’utilisation qui est ainsi faite de leurs d’œuvres

Prise en compte dans les licences des conditions imposées par les organisateurs de manifestations

132. 1) Les dispositions du présent article sont applicables aux recours formés et aux demandes présentées en vertu du présent chapitre en ce qui concerne les licences relatives à des enregistrements sonores, des films, des émissions de radiodiffusion ou des programmes distribués par câble qui reprennent ou doivent reprendre un spectacle ou une autre manifestation.

2) Le tribunal du droit d’auteur doit tenir compte de toutes conditions imposées par les organisateurs du spectacle ou autre manifestation et, en particulier, ne doit pas tenir pour abusif le refus ou l’absence de concession d’une licence au cas où celle-ci n’aurait pu être compatible avec ces conditions.

3) Aucune disposition du présent article ne saurait être interprétée comme exigeant que le tribunal tienne compte de ces conditions dans la mesure où elles

a) tendent à définir les droits ou redevances à imposer en contrepartie de la licence, ou

b) ont trait au montant de la rémunération à verser aux organisateurs d’une manifestation en contrepartie de la mise à disposition des moyens nécessaires pour réaliser l’enregistrement, le film, l’émission ou le programme.

Prise en compte dans les licences des versements effectués au titre des droits principaux

133. 1) Pour déterminer les droits ou redevances à acquitter au titre d’une licence a) à la suite d’un recours formé ou d’une demande présentée en vertu du présent

chapitre en ce qui concerne des licences relatives à la location au public de copies d’enregistrements sonores, de films ou de programmes d’ordinateur, ou

b) à la suite d’une demande présentée en vertu de l’article142(fixation des redevances ou autres sommes exigibles au titre d’une licence supposée),

le tribunal du droit d’auteur tient compte de tout montant équitable que le titulaire du droit d’auteur sur l’enregistrement sonore, le film ou le programme d’ordinateur est tenu

de verser, en contrepartie de la concession de la licence ou des actes autorisés au titre de la licence, aux titulaires du droit d’auteur sur les d’œuvres comprises dans l’oeuvre en question.

2) A l’occasion de tout recours formé ou de toute demande présentée en vertu du présent chapitre au sujet de licences relatives au droit d’auteur sur des enregistrements sonores, des films, des émissions de radiodiffusion ou des programmes distribués par câble, le tribunal du droit d’auteur tient compte, pour déterminer les droits ou redevances à acquitter au titre d’une licence, de tout montant équitable que le titulaire du droit d’auteur est tenu de verser, en contrepartie de la concession de la licence ou des actes autorisés au titre de la licence, en ce qui concerne toute représentation ou exécution comprise dans l’enregistrement, le film, l’émission ou le programme.

Licences relatives à des d’œuvres comprises dans des retransmissions

134. 1) Les dispositions du présent article sont applicables aux recours formés et aux demandes présentées en vertu du présent chapitre en ce qui concerne des licences permettant de faire figurer dans une émission de radiodiffusion ou de programmer dans un service de câblodistribution

a) des d’œuvres littéraires, dramatiques, musicales ou artistiques, ou b) des enregistrements sonores ou des films, lorsqu’une émission de

radiodiffusion ou un programme distribué par câble (la “première transmission”) doit, par voie de réception et de retransmission immédiate, faire l’objet d’une nouvelle émission ou d’une nouvelle programmation dans un service de câblodistribution (la “nouvelle transmission”).

2) Dans la mesure où la nouvelle transmission est opérée dans la même zone que la première, le tribunal du droit d’auteur tient compte, pour apprécier le montant des droits ou redevances à acquitter (le cas échéant) au titre de licences pour l’une ou l’autre des transmissions, de la mesure dans laquelle le titulaire du droit d’auteur a déjà perçu, ou peut réclamer, pour l’autre transmission une somme représentant pour lui une rémunération suffisante au titre des transmissions destinées à la zone considérée.

3) Dans la mesure où la nouvelle transmission est opérée dans une zone différente de celle où a eu lieu la première transmission, le tribunal ne tient pas compte (sauf au cas où l’alinéa 4) est applicable) de la nouvelle transmission pour apprécier le montant des droits ou redevances à acquitter (le cas échéant) au titre de licences accordées pour la première transmission.

4) Si le tribunal acquiert la conviction que, en raison des conditions imposées aux termes de l’article 13.1) de la loi de 1984 sur la distribution par câble et la radiodiffusion (obligation de la Cable Authority de veiller à ce que certaines émissions soient programmées dans les services de câblodistribution), la nouvelle transmission touche des zones débordant en partie la zone dans laquelle a été opérée la première transmission, le tribunal veille à ce que les droits ou redevances à acquitter au titre des licences accordées pour la première transmission soient calculés en conséquence.

Caractère non exhaustif des dispositions concernant les éléments particuliers à prendre en considération

135. La mention, aux articles 129 à 134, des éléments particuliers dont le tribunal du droit d’auteur doit tenir compte dans certaines catégories de cas n’a aucune incidence sur l’obligation incombant de manière générale au tribunal de prendre en considération en toute hypothèse l’ensemble des faits pertinents.

Obligation implicite d’indemnisation dans le cadre de barèmes de licences ou de licences de reproduction reprographique

Obligation implicite d’indemnisation dans le cadre de certains barèmes de licences et de licences de reproduction reprographique

136. 1) Les dispositions du présent article sont applicables a) aux barèmes de licences en vue de la reproduction reprographique d’œuvres

littéraires, dramatiques, musicales ou artistiques publiées ou de la présentation typographique d’éditions publiées, et

b) aux licences accordées par des organismes compétents en vue d’une telle reproduction,

lorsque le barème ou la licence ne précise pas les d’œuvres auxquelles il s’applique de façon suffisamment détaillée pour permettre aux titulaires de licences de déterminer si une oeuvre relève du champ d’application du barème ou de la licence en examinant ce barème ou cette licence ainsi que l’oeuvre en question.

2) Il est implicitement prévu

a) dans tout barème auquel s’applique le présent article que l’organisme appliquant le barème s’engage à indemniser toute personne à qui une licence a été accordée en vertu de ce barème, et

b) dans toute licence à laquelle s’applique le présent article que l’organisme qui accorde la licence s’engage à indemniser le titulaire de cette licence

au titre de toute responsabilité encourue par l’intéressé pour avoir porté atteinte au droit d’auteur en réalisant ou en autorisant la réalisation de reproductions reprographiques d’une oeuvre dans des conditions relevant du champ d’application apparent de sa licence.

3) Les conditions entourant un cas d’espèce relèvent du champ d’application apparent d’une licence si

a) il ne ressort pas à l’évidence de l’examen de la licence et de l’oeuvre que l’objet visé dans le cas considéré ne relève pas de la catégorie d’œuvres auxquelles s’applique la licence, et

b) la licence ne prévoit pas expressément qu’elle ne s’étend pas au type de droit d’auteur auquel il a été porté atteinte.

4) Dans le présent article, le terme “responsabilité” désigne aussi une obligation pécuniaire et le présent article est applicable par rapport aux frais auxquels est normalement exposé un titulaire de licence contre lequel des poursuites ont été engagées ou sont envisagées pour atteinte au droit d’auteur, au même titre qu’il est applicable aux sommes que l’intéressé est tenu de verser au titre d’une telle atteinte.

5) Un barème ou une licence auquel le présent article est applicable peut comporter des dispositions équitables

a) en ce qui concerne les modalités selon lesquelles et les délais dans lesquels doivent être formulées toutes prétentions visant à obtenir le respect de l’engagement découlant implicitement des dispositions du présent article;

b) permettant à l’organisme appliquant le barème ou, selon le cas, à l’organisme accordant la licence de reprendre l’initiative de toute procédure ayant une incidence sur l’étendue de ses responsabilités en matière d’indemnisation.

Reproduction reprographique par les établissements d’enseignement

Pouvoir d’étendre le champ d’application du barème ou de la licence

137. 1) Les dispositions du présent article sont applicables a) à tout barème de licences visé aux articles 118 à 123 (voir l’article117 ) et qui

est appliqué par un organisme accordant des licences, ou

b) à toute licence visée aux articles 125 à 128 (voir l’article124 ), dans la mesure où elles prévoient la concession de licences, ou dans la mesure où il s’agit d’une licence, autorisant la reproduction par reprographie, à des fins didactiques, par des établissements d’enseignement ou pour leur compte, d’œuvres littéraires, dramatiques, musicales ou artistiques publiées ou de la présentation typographique d’éditions publiées.

2) Si le ministre constate, en ce qui concerne un barème de licences auquel le présent article est applicable, que

a) des d’œuvres comparable à celles auxquelles s’appliquent le barème ou la licence sont abusivement exclues du champ d’application de celui-ci ou de celle-ci, et que

b) l’extension du barème ou de la licence à ces d’œuvres ne porterait pas atteinte à l’exploitation normale de celles-ci et ne causerait pas un préjudice injustifié aux intérêts légitimes des titulaires du droit d’auteur,

il peut prévoir par voie d’ordonnance que le barème ou la licence s’appliquera à ces d’œuvres

3) Lorsqu’il se propose d’édicter une telle ordonnance, le ministre en avise

a) les titulaires du droit d’auteur, b) l’organisme accordant des licences intéressé, et c) les personnes ou organisations représentant les établissements

d’enseignement et toutes autres personnes ou organisations auxquelles il lui paraît opportun d’adresser une notification à cet effet.

4) La notification informe les personnes intéressées de leur droit de présenter, verbalement ou par écrit, des observations au ministre au sujet de la proposition dans les six mois à compter de la date de ladite notification et, si l’une quelconque d’entre elles

souhaite formuler des observations verbalement, le ministre désigne une personne chargée d’entendre l’intéressé puis de lui rendre compte.

5) Le ministre se prononce sur l’opportunité d’édicter une ordonnance compte tenu de toutes observations lui ayant été présentées en application des dispositions de l’alinéa 4) et des autres éléments qui lui paraissent pertinents.

Modification ou annulation d’une ordonnance étendant le champ d’application du barème ou de la licence

138. 1) Le titulaire du droit d’auteur sur une oeuvre à l’égard de laquelle une ordonnance est en vigueur en vertu de l’article137 peut demander au ministre, par requête motivée, de modifier ou d’annuler cette ordonnance.

2) Le ministre doit considérer comme irrecevable toute requête présentée dans les deux ans suivant la publication de l’ordonnance initiale ou celle d’une ordonnance édictée à la suite d’une précédente requête présentée en vertu du présent article, à moins que les circonstances du cas d’espèce ne lui paraissent exceptionnelles.

3) Après avoir étudié les motifs de la requête, le ministre peut confirmer l’ordonnance; dans le cas contraire, il notifie la requête

a) à l’organisme accordant des licences intéressé, et b) aux personnes ou organisations représentant les établissements

d’enseignement et à toutes autres personnes ou organisations auxquelles il lui paraît opportun d’adresser une notification à cet effet.

4) La notification informe les personnes intéressées de leur droit de présenter, verbalement ou par écrit, des observations au ministre au sujet de la requête dans les deux mois à compter de la date de ladite notification et, si l’une quelconque d’entre elles souhaite formuler des observations verbalement, le ministre désigne une personne chargée d’entendre l’intéressé puis de lui rendre compte.

5) Le ministre étudie la requête compte tenu des motifs sur lesquels elle repose, de toutes observations lui ayant été présentées en application des dispositions de l’alinéa 4) et de tous autres éléments lui paraissant pertinents.

6) Le ministre peut édicter toute ordonnance qu’il juge appropriée en vue de confirmer ou d’annuler l’ordonnance (ou, selon le cas, l’ordonnance déjà modifiée) ou de la modifier (le cas échéant, la modifier de nouveau) de façon à en écarter l’application par rapport à certaines d’œuvres

Recours contre les ordonnances

139. 1) Le titulaire du droit d’auteur sur une oeuvre qui a fait l’objet d’une ordonnance en vertu de l’article137 (ordonnance étendant le champ d’application d’un barème ou d’une licence) peut saisir le tribunal du droit d’auteur, qui peut confirmer ou annuler l’ordonnance ou la modifier de façon à en écarter l’application par rapport à certaines d’œuvres, selon ce qui lui paraît opportun compte tenu des considérations visées à l’alinéa 2) dudit article.

2) Lorsque le ministre a édicté une ordonnance en application de l’article138 (ordonnance confirmant, modifiant ou annulant une ordonnance étendant le champ d’application d’un barème ou d’une licence),

a) la personne à la requête de laquelle l’ordonnance a été édictée, ou b) toute personne ou organisation représentant les établissements

d’enseignement à qui a été notifiée la requête relative à l’ordonnance et qui a fait des observations en application des dispositions de l’alinéa 4) dudit article,

peut saisir le tribunal, qui peut confirmer ou annuler l’ordonnance ou prendre toutes autres dispositions qu’aurait pu prendre le ministre.

3) Un recours selon le présent article doit être formé dans les six semaines suivant l’ordonnance ou dans le délai prorogé pouvant être autorisé par le tribunal.

4) Une ordonnance édictée en vertu de l’article137 ou 138 ne prend effet qu’à l’expiration d’un délai de six semaines ou, si un recours est formé avant l’expiration de ce délai, reste sans effet tant que la procédure y relative n’est pas terminée ou abandonnée.

5) Si un recours est formé après l’expiration de ce délai, la décision du tribunal ne peut en aucun cas avoir d’incidence sur la validité d’un acte accompli en application de l’ordonnance faisant l’objet du recours avant que cette décision prenne effet.

Enquête concernant la nécessité d’un nouveau barème ou d’une licence générale

140. 1) Le ministre peut désigner une personne chargée d’étudier la nécessité de prévoir de nouvelles dispositions (dans le cadre d’un barème de licences ou d’une licence générale) pour autoriser la réalisation à des fins didactiques par des établissements d’enseignement ou pour leur compte, de reproductions reprographiques

a) d’œuvres littéraires, dramatiques, musicales ou artistiques publiées, ou b) de la présentation typographique d’éditions publiées,

qui, de l’avis du ministre, relèvent d’une catégorie qui n’est pas visée dans un barème de licences ou une licence générale en vigueur et à laquelle ne s’étend pas le pouvoir conféré aux termes de l’article 137 (pouvoir d’étendre le champ d’application de barèmes de licences et de licences à des d’œuvres comparables).

2) La procédure à suivre pour mener une enquête de cette nature est déterminée par le ministre par voie réglementaire.

3) Les dispositions réglementaires doivent en particulier prévoir l’envoi d’une notification

a) aux personnes ou organisations qui, de l’avis du ministre, paraissent représenter les titulaires du droit d’auteur sur les d’œuvres de la catégorie en question, et

b) aux personnes ou organisations qui, de l’avis du ministre, paraissent représenter les établissements d’enseignement,

et reconnaître à ces personnes la possibilité de présenter des observations par écrit ou verbalement, sans préjudice toutefois de la possibilité d’aviser d’autres personnes et organisations et de leur donner la possibilité d’exposer leur point de vue.

4) La personne désignée pour procéder à l’enquête ne doit recommander l’adoption de nouvelles dispositions qu’après avoir acquis la conviction

a) qu’il serait de l’intérêt des établissements d’enseignement d’être autorisés à faire des reproductions reprographiques des d’œuvres en question, et

b) que la prise en compte de ces d’œuvres dans un barème de licences ou dans une licence générale ne porterait pas atteinte à leur exploitation normale et ne causerait pas un préjudice injustifié aux intérêts légitimes du titulaire du droit d’auteur.

5) Le responsable de l’enquête doit préciser, au cas où il recommande l’adoption de nouvelles dispositions, les conditions, autres que celles ayant trait aux droits ou redevances à acquitter, auxquelles l’autorisation pourrait être obtenue en vertu des nouvelles dispositions.

6) Les dispositions réglementaires édictées en vertu du présent article sont susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

7) Dans le présent article (et à l’article 141), on entend par “licence générale” une licence accordée par un organisme compétent pour toutes les d’œuvres entrant dans la catégorie à laquelle elle s’applique.

Licence légale lorsqu’il n’est pas donné suite à la recommandation

141. 1) Le ministre peut, dans un délai d’un an à compter de la formulation d’une recommandation en vertu de l’article 140, prévoir par voie d’ordonnance que si, ou dans la mesure où, des dispositions n’ont pas été prises en application de la recommandation, la réalisation à des fins didactiques, par un établissement d’enseignement ou pour son compte, de reproductions reprographiques des d’œuvres auxquelles s’applique la recommandation est réputée être autorisée par les titulaires du droit d’auteur sur les d’œuvres

2) A cet effet, des dispositions sont réputées avoir été prises en application de la recommandation si

a) un barème de licences certifié a été établi, en vertu duquel une licence peut être obtenue par l’établissement en question, ou

b) une licence générale a été i) accordée à cet établissement ou à son profit, ou

ii) soumise par cet établissement ou pour son compte au tribunal du droit d’auteur en vertu de l’article125 (conditions définies dans un projet de licence), ou

iii) proposée à cet établissement ou à son profit et refusée sans avoir été soumise au tribunal,

et si les conditions du barème ou de la licence sont conformes à la recommandation.

3) L’ordonnance doit aussi prévoir que toute licence en vigueur autorisant la réalisation de ces reproductions (à l’exclusion d’une licence accordée en vertu d’un barème de licences certifié ou d’une licence générale) cesse de produire effet dans la mesure où elle est plus restrictive ou plus onéreuse que celle que prévoit l’ordonnance.

4) L’ordonnance doit prévoir que la licence n’est subordonnée au paiement d’aucune redevance mais est assortie des conditions précisées dans la recommandation et de celles que le ministre peut juger appropriées.

5) L’ordonnance peut prévoir qu’une reproduction qui constituerait une copie ou un exemplaire contrefait si elle n’était réalisée en application de la licence prévue par l’ordonnance et qui est ensuite exploitée d’une autre manière, est assimilée à une copie ou un exemplaire contrefait aux fins de cette exploitation si celle-ci porte atteinte au droit d’auteur à tous autres égards par la suite.

Dans le présent alinéa, on entend par “exploitation” la vente ou la location, l’offre en vente ou en location, la présentation en vue de la vente ou de la location ou l’exposition en public.

6) L’ordonnance ne peut entrer en vigueur que six mois après avoir été édictée.

7) Une ordonnance peut périodiquement être modifiée, sans qu’il soit possible toutefois d’en étendre l’application à d’autres d’œuvres que celles qui sont visées dans la recommandation ni d’en supprimer des conditions précisées dans la recommandation, et peut être rapportée.

8) Toute ordonnance prévue aux termes des dispositions du présent article est édictée par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

9) Dans le présent article, on entend par “barème de licences certifié” un barème de licences certifié aux fins du présent article en vertu de l’article 143.

Redevances ou autres sommes exigibles au titre de la location de certaines d’œuvres

Redevances ou autres sommes exigibles au titre de la location d’enregistrements sonores, de films ou de programmes d’ordinateur

142. 1) Le titulaire du droit d’auteur ou la personne prétendant être considérée comme autorisée par ce dernier peut demander au tribunal du droit d’auteur de fixer le montant des redevances ou de toute autre somme à acquitter en application de l’article66 (location d’enregistrements sonores, de films et de programmes d’ordinateur).

2) Le tribunal se prononce de la façon qu’il peut estimer équitable en l’espèce après avoir étudié la question.

3) Chacune des parties a ensuite la faculté de demander au tribunal de modifier sa décision et, après avoir étudié la question, le tribunal se prononce en confirmant ou en modifiant la décision initiale, selon ce qui lui paraît équitable en l’espèce.

4) Une requête ne peut être présentée en vertu de l’alinéa 3), sauf autorisation spéciale du tribunal, avant l’expiration d’un délai de 12 mois à compter de la date de la décision initiale ou de la décision rendue à la suite d’une précédente requête en vertu dudit alinéa.

5) Une décision prise en vertu de l’alinéa 3) prend effet dès la date à laquelle elle est rendue ou à une date ultérieure fixée par le tribunal.

Certification des barèmes de licences

Certification des barèmes de licences

143. 1) Une personne appliquant ou proposant d’appliquer un barème de licences peut demander au ministre de certifier ce barème aux fins de

a) l’article 35 (enregistrement d’émissions de radiodiffusion ou de programmes distribués par câble à des fins pédagogiques),

b) l’article 60 (résumés d’articles scientifiques ou techniques), c) l’article 66 (location d’enregistrements sonores, de films et de programmes

d’ordinateur),

d) l’article 74 (copies sous-titrées d’émissions de radiodiffusion ou de programmes distribués par câble, à l’intention des sourds et malentendants), ou

e) l’article 141 (reproduction reprographique, par des établissements d’enseignement, d’œuvres publiées).

2) Le ministre certifie le barème aux termes d’une ordonnance édictée par voie de dispositions réglementaires s’il a acquis la conviction que celui-ci

a) permet aux personnes qui pourraient demander des licences d’identifier avec suffisamment de certitude les d’œuvres auxquelles il se rapporte, et

b) précise clairement les droits ou redevances à acquitter (le cas échéant) et les autres conditions auxquelles des licences seront accordées.

3) Le barème doit être annexé à l’ordonnance et la certification prend effet aux fins des articles 35, 60, 66, 74 ou 141, selon le cas,

a) à la date précisée dans l’ordonnance, mais en aucun cas moins de huit semaines après que celle-ci a été prise. ou

b) si le barème est soumis au tribunal en application de l’article118(recours concernant un projet de barème), à toute date ultérieure à laquelle la décision rendue par le tribunal du droit d’auteur en vertu dudit article entre en vigueur, ou à laquelle la requête visant à saisir le tribunal est retirée.

4) Une modification du barème ne prend effet que si l’ordonnance est modifiée de manière correspondante et le ministre est tenu de modifier l’ordonnance si la modification du barème a été ordonnée par le tribunal du droit d’auteur en application des

articles 118, 119 ou 120; en toute autre hypothèse, il peut procéder à cette modification s’il le juge opportun.

5) L’ordonnance est rapportée si le barème cesse d’être appliqué et peut être rapportée si le ministre constate qu’il n’est plus appliqué dans les conditions qui y sont précisées.

Pouvoirs pouvant être exercés à la suite d’un rapport sur la concurrence

Pouvoirs pouvant être exercés à la suite d’un rapport de la Commission des monopoles et des concentrations

144. 1) Lorsque, parmi les éléments retenus dans un rapport de la Commission des monopoles et des concentrations comme étant, pouvant être ou ayant été, de l’avis de la commission, contraires à l’intérêt public, figurent

a) les conditions des licences accordées par le titulaire du droit d’auteur sur une oeuvre ayant pour effet de restreindre l’utilisation de l’oeuvre par le titulaire de la licence ou le droit du titulaire du droit d’auteur d’accorder d’autres licences, ou

b) un refus du titulaire du droit d’auteur d’accorder des licences à des conditions équitables,

les pouvoirs conférés aux termes des dispositions de la première partie de l’annexe 8 de la loi de 1973 sur les pratiques loyales en matière commerciale (pouvoirs pouvant être exercés afin de faire obstacle à des conséquences préjudiciables précisées dans un rapport de la commission ou d’y remédier) comprennent celui d’annuler ou de modifier ces conditions et d’y ajouter, ou d’y substituer, une clause prévoyant que des licences en matière de droit d’auteur peuvent être obtenues de plein droit.

2) Les mentions des pouvoirs spécifiés dans cette partie de l’annexe, figurant aux articles 56.2) et 73.2) de la loi précitée et aux articles 10.2)b) et 12.5) de la loi de 1980 sur la concurrence, doivent être interprétées de manière correspondante.

3) Un ministre ne peut exercer les pouvoirs prévus aux termes du présent article qu’après avoir acquis la conviction que cela n’est contraire à aucune convention relative au droit d’auteur à laquelle le Royaume-Uni est partie.

4) Les conditions d’une licence pouvant être obtenue en vertu des dispositions du présent article sont, à défaut d’accord, fixées par le tribunal du droit d’auteur sur requête de la personne qui demande la licence et les conditions ainsi fixées doivent autoriser le preneur de licence à accomplir tout acte pour lequel une licence peut ainsi être obtenue.

5) Lorsque les conditions d’une licence sont fixées par le tribunal, la licence prend effet à compter de la date à laquelle la requête a été adressée au tribunal.

CHAPITRE VIII LE TRIBUNAL DU DROIT D’AUTEUR

Le tribunal

Le tribunal du droit d’auteur

145. 1) Le tribunal créé en vertu de l’article 23 de la loi de 1956 sur le droit d’auteur est désormais dénommé le tribunal du droit d’auteur.

2) Le tribunal est composé d’un président et de deux vice-présidents nommés par le ministre de la justice (Lord Chancellor), après consultation du procureur général (Lord Advocate), et de deux à huit membres ordinaires nommés par le ministre.

3) Nul ne peut être nommé président ou vice-président s’il n’est avocat (barrister, advocate) ou avoué (solicitor) et compte au moins sept ans de pratique ou s’il n’a exercé des fonctions judiciaires.

Dispositions applicables aux membres du tribunal

146. 1) Les membres du tribunal du droit d’auteur exercent et cessent d’exercer leurs fonctions conformément aux conditions de leur nomination, sous réserve des dispositions suivantes.

2) Tout membre du tribunal peut se démettre de ses fonctions en en avisant par écrit le ministre ou, s’agissant du président ou d’un vice-président, le ministre de la justice.

3) Le ministre ou, s’agissant du président ou d’un vice-président, le ministre de la justice peut destituer de ses fonctions le membre considéré, en lui adressant une notification écrite à cet effet, si celui-ci

a) a fait faillite ou a conclu un arrangement avec ses créanciers, ou en Ecosse, a vu ses biens mis sous séquestre, ou s’il a signé un acte de fidéicommis en faveur de ses créanciers, ou encore s’il a conclu un concordat, ou

b) est frappé d’incapacité par suite de maladie physique ou mentale, ou si, de l’avis du ministre, ou selon le cas, du ministre de la justice, il est pour d’autres raisons incapable d’exercer ses fonctions ou inapte à remplir les devoirs de sa charge.

4) Si un membre du tribunal est malade, absent ou pour toute autre raison sérieuse dans l’incapacité temporaire d’exercer ses fonctions, soit de façon générale, soit à l’égard d’une procédure déterminée, une autre personne peut être nommée pour remplir ses fonctions dans l’intérim, pour une période de six mois au plus par mandat ou, le cas échéant, pour ce qui concerne la procédure en question.

5) Le suppléant est nommé

a) s’agissant du poste de président ou de vice-président, par le ministre de la justice, qui désigne une personne remplissant les conditions requises pour être nommée à ce poste, et

b) s’agissant d’un membre ordinaire, par le ministre, et toute personne ainsi nommée jouit, pendant toute la durée de son mandat, ou par rapport à la procédure en question, des mêmes pouvoirs que celle qu’elle remplace.

6) Le ministre de la justice consulte le procureur général avant d’exercer les pouvoirs qui lui sont reconnus aux termes du présent article.

Dispositions d’ordre pécuniaire

147. 1) Les membres du tribunal du droit d’auteur perçoivent la rémunération (traitement ou honoraires) et les indemnités pouvant être fixées par le ministre avec l’approbation du Trésor.

2) Le ministre peut adjoindre au tribunal le personnel dont il fixe, avec l’approbation du Trésor, l’effectif et la rémunération.

3) La rémunération et les indemnités des membres du tribunal, la rémunération du personnel et les autres dépenses du tribunal que peut fixer le ministre avec l’approbation du Trésor sont prélevées sur les crédits votés par le Parlement.

Composition aux fins d’une procédure

148. 1) Aux fins de toute procédure, le tribunal du droit d’auteur est composé a) d’un président, qui est soit le président soit un vice-président du tribunal, et b) d’au moins deux membres ordinaires. 2) A défaut d’unanimité entre les membres du tribunal, les décisions sont prises à la

majorité des voix et, en cas de partage égal des voix, le président se prononce de nouveau, avec voix prépondérante.

3) Lorsque, au cours d’une procédure déjà engagée devant le tribunal, un ou plusieurs membres de celui-ci se trouvent dans l’incapacité de continuer à exercer leurs fonctions, le tribunal demeure dûment constitué, aux fins de la procédure en question, tant que le nombre de ses membres n’est pas inférieur à trois.

4) Si le président est dans l’incapacité de continuer à exercer ses fonctions, le président du tribunal

a) nomme à la présidence l’un des autres membres, et b) nomme une personne dûment qualifiée chargée de suivre les débats et de

conseiller les membres sur toutes questions de droit pouvant se poser.

5) Aux fins des dispositions de l’alinéa 4)b), une personne est “dûment qualifiée” si elle exerce, ou remplit les conditions requises pour exercer, les fonctions de vice- président du tribunal.

Compétence et procédure

Compétence du tribunal

149. Le tribunal du droit d’auteur a pour mission de connaître des procédures engagées en vertu des articles suivants et de se prononcer en la matière:

a) article 118, 119 ou 120 (recours concernant des barèmes de licences); b) article 121 ou 122 (demande relative à l’obtention d’une licence en vertu

d’un barème de licences);

c) article 125, 126 ou 127 (recours ou demande concernant la concession d’une licence par un organisme compétent);

d) article 139 (recours contre une ordonnance concernant le champ d’application d’un barème ou d’une licence);

e) article 142 (requête relative à la fixation des redevances ou autres sommes exigibles au titre de la location d’enregistrements sonores, de films ou de programmes d’ordinateur);

f) article 144.4) (requête concernant la fixation des conditions d’une licence de plein droit en matière de droit d’auteur);

g) article 190 (requête visant à obtenir une autorisation, aux fins de la deuxième partie, au nom des artistes interprètes ou exécutants);

h) point 5 de l’annexe 6 (détermination des redevances ou autres rémunérations à verser aux administrateurs de l’Hôpital des enfants malades).

Pouvoir général d’édicter des règlements

150. 1) Le ministre de la justice peut, après consultation du procureur général, édicter des dispositions (rules) réglementant le déroulement de la procédure devant le tribunal du droit d’auteur et, sous réserve de l’approbation du Trésor, fixant les droits et taxes à acquitter à l’occasion de celles-ci.

2) Les règlements peuvent prévoir l’application, par rapport au tribunal,

a) en ce qui concerne les procédures engagées en Angleterre et au Pays de Galles, de l’une quelconque des dispositions de la loi de 1950 sur l’arbitrage (Arbitration Act 1950),

b) en ce qui concerne les procédures engagées en Irlande du Nord, de l’une quelconque des dispositions de la loi de 1937 sur l’arbitrage (Arbitration Act (Northern Ireland) 1937),

et toutes les dispositions dont l’application est ainsi prévue seront définies dans les règlements ou annexées à ceux-ci.

3) Les règlements doivent comporter des dispositions

a) interdisant au tribunal d’accepter de connaître d’un recours formé en vertu de l’article 118, 119 ou 120 par une organisation représentative s’il n’a pas acquis la conviction que cette organisation est suffisamment représentative de la catégorie de personnes qu’elle prétend représenter;

b) précisant les parties à toute procédure et permettant au tribunal d’associer à cette procédure en tant que partie toute personne ou organisation dont il a acquis la conviction qu’elle a un intérêt non négligeable en la matière; et

c) invitant le tribunal à donner aux parties à la procédure la possibilité d’exposer leurs arguments, par écrit ou verbalement.

4) Les règlements peuvent comporter des dispositions visant à réglementer toute question accessoire ou consécutive à un recours formé contre une décision du tribunal en vertu de l’article 152 (recours devant la Haute Cour portant sur un point de droit) ou comporter des prescriptions à ce sujet.

5) Les règlements édictés en application du présent article sont susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Frais et dépens, preuve des décisions, etc.

151. 1) Le tribunal du droit d’auteur peut ordonner que les frais et dépens encourus par l’une des parties dans le cadre d’une procédure engagée devant lui soient mis à la charge de l’autre partie dans les conditions qu’il peut préciser et peut taxer ou fixer le montant des frais et dépens, ou préciser la manière dont ils doivent être taxés.

2) Un document censé être une copie d’une décision du tribunal certifiée conforme par le président est, sauf preuve contraire, considéré comme une preuve suffisante de cette décision dans le cadre de toute procédure.

3) En ce qui concerne les procédures engagées en Ecosse, le tribunal jouit des mêmes pouvoirs pour obtenir la comparution des témoins et la production de documents ainsi qu’au regard de l’audition de témoins sous la foi du serment que s’il était chargé d’établir un compromis arbitral.

Recours

Saisine de la cour sur un point de droit

152. 1) Toute question de droit soulevée par une décision du tribunal du droit d’auteur peut être portée devant la Haute Cour (High Court) ou, s’agissant d’une procédure engagée devant le tribunal en Ecosse, devant la Court of Session.

2) Les règlements prévus à l’article 150 préciseront le délai de recours.

3) Les règlements peuvent notamment être édictés en vertu dudit article en vue de

a) suspendre l’exécution des décisions du tribunal, ou autoriser ou inviter ce dernier à suspendre l’exécution de ses décisions, au cas où celles-ci font l’objet d’un recours;

b) modifier, par rapport à une décision du tribunal dont l’exécution est suspendue, l’application de toute disposition de la présente loi régissant les effets de la décision;

c) faire publier des avis ou prendre d’autres mesures pour faire en sorte que les personnes touchées par la suspension de l’exécution d’une décision du tribunal soient informées de cette suspension.

CHAPITRE IX CONDITIONS D’APPLICATION ET ÉTENDUE DE LA PROTECTION CONFÉRÉE AU TITRE DU DROIT D’AUTEUR

Conditions d’application de la protection

Conditions d’application de la protection

153. 1) Une oeuvre ne peut être protégée au titre du droit d’auteur que si les conditions définies dans le présent chapitre sont réunies en ce qui concerne

a) l’auteur (voir l’article 154), ou b) le pays dans lequel l’oeuvre a été publiée pour la première fois (voir

l’article 155), ou

c) s’agissant d’une émission de radiodiffusion ou d’un programme distribué par câble, le pays d’où l’émission a eu lieu ou d’où le programme a été distribué (voir l’article 156).

2) Les dispositions de l’alinéa 1) ne sont pas applicables au regard du droit d’auteur reconnu à la Couronne ou aux Assemblées parlementaires (voir les articles 163 à 166) ni au droit d’auteur découlant des dispositions de l’article 168(droit d’auteur de certaines organisations internationales).

3) Dès que les conditions d’application de la protection définies dans le présent chapitre ou à l’article163, 165 ou 168 sont réunies par rapport à une oeuvre, aucun événement ultérieur ne peut entraîner l’expiration du droit d’auteur.

Conditions d’application par rapport à l’auteur

154. 1) Une oeuvre peut être protégée au titre du droit d’auteur si son auteur était, au moment déterminant, une personne qualifiée, à savoir

a) citoyen britannique, citoyen d’un territoire placé sous dépendance britannique, ressortissant britannique (d’outre-mer), citoyen britannique d’outre-mer, sujet britannique ou personne protégée britannique au sens de la loi britannique de 1981 sur la nationalité, ou

b) un particulier domicilié au Royaume-Uni ou dans un autre pays auquel s’étendent les dispositions pertinentes de la présente partie ou y résidant, ou

c) une société constituée en vertu de la législation d’une partie du Royaume-Uni ou d’un autre pays auquel s’appliquent les dispositions pertinentes de la présente partie.

2) Lorsque, ou dans la mesure où, des dispositions sont prises par voie d’ordonnance en vertu de l’article159 (application de la présente partie aux pays auxquels elle ne s’étend pas), une oeuvre peut aussi bénéficier de la protection au titre du droit d’auteur si, au moment déterminant, l’auteur était citoyen ou sujet d’un pays auquel s’applique l’ordonnance, avait son domicile ou sa résidence dans ce pays, ou, s’agissant d’une société, était constituée en vertu des lois de ce pays.

3) Une oeuvre de collaboration peut bénéficier de la protection si, au moment déterminant, l’un des auteurs satisfait aux conditions énoncées à l’alinéa 1) ou 2); toutefois, lorsqu’une oeuvre ne peut bénéficier de la protection qu’en vertu des dispositions du présent article, seuls les auteurs qui remplissent ces conditions sont pris en compte aux fins

de l’article 11.1) et 2) (premier titulaire du droit d’auteur; droit de l’auteur ou de l’employeur de l’auteur),

de l’article 12.1) et 2) (durée du droit d’auteur, fonction de la durée de vie de l’auteur, à moins qu’il ne s’agisse d’une oeuvre dont l’auteur est inconnu) et de

l’article 9.4) (signification de l’expression “d’auteur inconnu”) dans la mesure où il est applicable aux fins de l’article 12.2), et

de l’article 57 (d’œuvres anonymes ou pseudonymes: actes autorisés dans l’hypothèse de l’expiration du droit d’auteur ou du décès de l’auteur).

4) Le moment déterminant par rapport à une oeuvre littéraire, dramatique, musicale ou artistique est

a) s’agissant d’une oeuvre non publiée, celui où l’oeuvre a été créée ou, si cette création s’est étendue sur une certaine période, une partie importante de cette période;

b) s’agissant d’une oeuvre publiée, la date de la première publication ou, si l’auteur était décédé avant cette date, la période ayant immédiatement précédé son décès.

5) Par rapport à toute autre catégorie d’œuvres, le moment déterminant est

a) s’agissant d’un enregistrement sonore ou d’un film, la date à laquelle il a été réalisé;

b) s’agissant d’une émission de radiodiffusion, la date à laquelle elle a été réalisée;

c) s’agissant d’un programme distribué par câble, la date à laquelle il a été programmé dans un service de câblodistribution;

d) s’agissant de la présentation typographique d’une édition publiée, la date de la première publication de cette édition.

Conditions d’application par rapport au pays de la première publication

155. 1) Une oeuvre littéraire, dramatique, musicale ou artistique, un enregistrement sonore ou un film ou la présentation typographique d’une édition publiée est susceptible d’être protégé au titre du droit d’auteur si la première publication a lieu

a) au Royaume-Uni, ou b) dans un autre pays auquel s’étendent les dispositions pertinentes de la

présente partie.

2) Lorsque, ou dans la mesure où, des dispositions sont prises par voie d’ordonnance en vertu de l’article159 (application des dispositions de la présente partie aux pays auxquels elle ne s’étend pas), cette oeuvre peut aussi bénéficier de la protection si sa première publication a lieu dans un pays auquel se rapporte l’ordonnance.

3) Aux fins du présent article, une publication effectuée dans un pays n’est pas considérée comme ne constituant pas une première publication du seul fait qu’une publication est intervenue simultanément ailleurs et, à cet effet, est considérée comme simultanée une publication intervenue ailleurs dans les 30 jours précédents.

Conditions d’application par rapport au lieu de la transmission

156. 1) Une émission de radiodiffusion est susceptible d’être protégée au titre du droit d’auteur si elle est réalisée et un programme distribué par câble bénéficie de cette même protection s’il est acheminé à partir d’un lieu situé

a) au Royaume-Uni, ou b) dans un autre pays auquel s’étendent les dispositions pertinentes de la

présente partie.

2) Lorsque, ou dans la mesure où, des dispositions sont prises par voie d’ordonnance en vertu de l’article159 (application des dispositions de la présente partie aux pays auxquels elle ne s’étend pas), une émission de radiodiffusion ou un programme distribué par câble peut aussi bénéficier de la protection si elle est réalisée ou, selon le cas, s’il est acheminé à partir d’un lieu situé dans un pays auquel se rapporte l’ordonnance.

Etendue et application de la présente partie

Pays auxquels s’étend la présente partie

157. 1) La présente partie s’étend à l’Angleterre et au Pays de Galles, à l’Ecosse et à I’Irlande du Nord.

2) Sa Majesté peut, par ordonnance en Conseil, prévoir que les dispositions de la présente partie s’étendront, sous réserve des exceptions et modifications précisées dans l’ordonnance,

a) aux îles anglo-normandes, b) à I’Ile de Man, ou c) à toute colonie. 3) Le pouvoir ainsi conféré comporte celui d’étendre, sous réserve des exceptions

et modifications qui peuvent y être précisées, toute ordonnance en Conseil édictée en vertu des dispositions suivantes du présent chapitre.

4) L’organe législatif de tout pays auquel les dispositions de la présente partie ont été étendues peut modifier ou compléter ces dispositions, en vue de leur application en tant que partie intégrante de la législation de ce pays, dans la mesure qu’il estime nécessaire pour adapter ces dispositions aux conditions du pays en question

a) en ce qui concerne la procédure et les moyens de recours, ou b) en ce qui concerne les d’œuvres susceptibles de bénéficier de la protection en

vertu d’un lien avec ce pays.

5) Aucune disposition du présent article ne doit être interprétée comme limitant le champ d’application du paragraphe 36 de la première annexe (dispositions transitoires: territoires dépendants dans lesquels la loi de 1956 ou la loi de 1911 sur le droit d’auteur demeure en vigueur) par rapport à la législation d’un territoire dépendant auquel ne s’étendent pas les dispositions de la présente partie.

Pays n’ayant plus le statut de colonie

158. 1) Les dispositions suivantes sont applicables lorsqu’un pays auquel ont été étendues les dispositions de la présente partie cesse d’être une colonie du Royaume-Uni.

2) Dès la date à laquelle il cesse d’être une colonie, il cesse d’être considéré comme un pays auquel s’étendent les dispositions de la présente partie aux fins

a) de l’article 160.2)a)(refus de la protection aux citoyens de pays n’assurant pas une protection adéquate aux d’œuvres britanniques), et

b) des articles 163 et 165 (droit d’auteur de la Couronne et des Assemblées parlementaires).

3) Il continue cependant d’être considéré comme un pays auquel s’étendent les dispositions de la présente partie aux fins des articles 154à 156 (conditions d’application de la protection) jusqu’à

a) l’adoption d’une ordonnance en Conseil en ce qui concerne ce pays, en vertu de l’article 159 (application des dispositions de la présente partie aux pays auxquels elle ne s’étend pas), ou

b) l’adoption d’une ordonnance en Conseil précisant qu’il cesse d’être considéré comme tel en raison du fait que les dispositions de la présente partie faisant partie intégrante de la législation de ce pays ont été abrogées ou modifiées.

4) Les ordonnances en Conseil prévues à l’alinéa 3)b) sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Application des dispositions de la présente partie aux pays auxquels elle ne s’étend pas

159. 1) Sa Majesté peut, par ordonnance en Conseil, prévoir l’application de toute disposition de la présente partie précisée dans l’ordonnance à un pays auquel celle-ci ne s’étend pas, de manière à faire en sorte que ces dispositions

a) soient applicables au regard des citoyens ou sujets de ce pays ou des personnes qui y ont leur domicile ou leur résidence, au même titre qu’elles le sont aux personnes qui ont la citoyenneté britannique ou qui ont leur domicile ou leur résidence au Royaume-Uni,

b) soient applicables au regard des sociétés ou organismes constitués en vertu de la législation de ce pays, au même titre qu’elles le sont au regard des sociétés ou organismes constitués en vertu de la législation d’une partie du Royaume- Uni,

c) soient applicables au regard des d’œuvres publiées pour la première fois dans ce pays, au même titre qu’elles le sont au regard des d’œuvres publiées pour la première fois au Royaume-Uni, ou

d) soient applicables au regard des émissions réalisées ou des programmes distribués par câble à partir de ce pays, au même titre qu’elles le sont au regard des émissions réalisées ou des programmes distribués par câble à partir du Royaume-Uni.

2) Une ordonnance peut comporter des dispositions régissant tout ou partie des questions mentionnées à l’alinéa 1) et peut

a) subordonner l’application de toute disposition de la présente partie aux exceptions et modifications précisées dans l’ordonnance; et

b) prévoir que toute disposition de la présente partie s’appliquera soit de façon générale soit par rapport aux catégories d’œuvres ou autres catégories de cas qui y sont précisées.

3) Exception faite dans le cas d’un pays partie à une convention sur le droit d’auteur ou d’un autre Etat membre de la Communauté économique européenne, Sa Majesté ne peut édicter d’ordonnance en Conseil en vertu du présent article par rapport à un pays donné avant d’avoir acquis la conviction que des dispositions ont été ou seront prises en vertu de la législation de ce pays, en ce qui concerne la catégorie d’œuvres à laquelle se rapporte l’ordonnance, pour assurer une protection adéquate aux titulaires du droit d’auteur selon la présente partie.

4) A l’alinéa 3), on entend par “pays partie à une convention sur le droit d’auteur” un pays partie à une convention relative au droit d’auteur à laquelle le Royaume-Uni est également partie.

5) Les ordonnances en Conseil prévues aux termes du présent article sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Refus de la protection aux citoyens de pays n’assurant pas une protection adéquate aux d’œuvres britanniques

160. 1) Si Sa Majesté estime que la législation d’un pays n’assure pas une protection adéquate aux d’œuvres britanniques auxquelles s’applique le présent article, ou à une ou plusieurs catégories de ces d’œuvres, Sa Majesté peut édicter, par voie d’ordonnance en Conseil prise en application du présent article, des dispositions restreignant les droits conférés aux termes de la présente partie au regard des d’œuvres d’auteurs ayant un lien avec ce pays.

2) Une ordonnance en Conseil édictée en application du présent article désigne le pays intéressé et prévoit que, aux fins qui y sont précisées. les d’œuvres publiées pour la première fois après une date déterminée ne sont pas considérées comme pouvant être protégées du fait de cette publication si, à l’époque considéré, les auteurs sont

a) citoyens ou sujets de ce pays (sans être domiciliés ni résider au Royaume-Uni ou dans un autre pays auquel les dispositions pertinentes de la présente partie s’étendent), ou

b) des sociétés ou organismes constitués en vertu de la législation de ce pays; l’ordonnance peut prévoir des dispositions de cette nature r toutes fins utiles dans le cadre de la présente partie et à toute autre fin qui y est précisée, soit de façon générale, soit au regard des catégories de cas qui y sont précisés, compte tenu de la nature et de l’étendue de l’insuffisance de la protection visée à l’alinéa 1).

3) Les dispositions du présent article s’appliquent aux d’œuvres littéraires, dramatiques, musicales et artistiques, aux enregistrements sonores et aux films et l’expression “d’œuvres britanniques” désigne les d’œuvres dont l’auteur était une personne qualifiée au moment déterminant au sens de l’article154.

4) Les ordonnances en Conseil prévues aux termes du présent article sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Dispositions supplémentaires

Eaux territoriales et plateau continental

161. 1) Aux fins de la présente partie, les eaux territoriales du Royaume-Uni sont considérées comme faisant partie intégrante de ce pays.

2) Les dispositions de la présente partie sont applicables aux actes accomplis dans la zone du plateau continental du Royaume-Uni sur une structure ou un navire dont la présence sur ce plateau est directement liée à l’exploration des fonds ou du sous-sol marins ou à l’exploitation de leurs ressources naturelles, au même titre qu’elles le sont aux actes accomplis au Royaume-Uni.

3) La zone du plateau continental du Royaume-Uni s’entend des zones précisées par voie d’ordonnance en vertu de l’article 1.7) de la loi de 1964 sur le plateau continental.

Navires, aéronefs et aéroglisseurs britanniques

162. 1) Les dispositions de la présente partie sont applicables aux actes accomplis à bord d’un navire, d’un aéronef ou d’un aéroglisseur britannique au même titre qu’elles le sont aux actes accomplis au Royaume-Uni.

2) Dans le présent article, on entend par

“navire britannique” un navire qui est un navire britannique aux fins des lois sur la marine marchande (voir l’article 2 de la loi de 1988 sur la marine marchande) autrement qu’en vertu d’une immatriculation dans un autre pays que le Royaume-Uni; et

“aéronef britannique” et “aéroglisseur britannique” un aéronef ou un aéroglisseur immatriculé au Royaume-Uni.

CHAPITRE X DISPOSITIONS DIVERSES ET GÉNÉRALES

Droit d’auteur de la Couronne et des Assemblées parlementaires

Droit d’auteur de la Couronne

163. 1) Lorsqu’une oeuvre est créée par Sa Majesté ou par un fonctionnaire ou un employé de la Couronne dans le cadre de ses fonctions

a) l’oeuvre peut bénéficier de la protection au titre du droit d’auteur nonobstant les dispositions de l’article 153.1) (conditions ordinaires d’application de la protection), et

b) Sa Majesté est le premier titulaire de tout droit d’auteur sur l’oeuvre. 2) Le droit d’auteur sur une oeuvre de cette nature est dénommé, dans la présente

partie, “droit d’auteur de la Couronne”, bien qu’il puisse être, ou avoir été, cédé à une autre personne.

3) Le droit d’auteur reconnu à la Couronne sur une oeuvre littéraire, dramatique, musicale ou artistique reste valable

a) jusqu’à l’expiration d’une période de 125 ans à compter de l’année civile au cours de laquelle l’oeuvre a été créée, ou

b) si l’oeuvre est publiée commercialement avant l’expiration d’une période de 75 ans à compter de la fin de l’année civile au cours de laquelle elle a été créée, jusqu’à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle elle a été ainsi publiée pour la première fois.

4) S’agissant d’une oeuvre de collaboration dont l’un ou plusieurs des auteurs, mais non la totalité d’entre eux, sont des personnes visées à l’alinéa 1), les dispositions du présent article ne sont applicables qu’au regard de ces auteurs et du droit d’auteur correspondant à leur contribution à l’oeuvre.

5) Exception faite des cas précités et sous réserve de toute exception expressément prévue dans d’autres dispositions de la présente partie, cette dernière est applicable au regard du droit d’auteur de la Couronne au même titre qu’à tout autre droit d’auteur.

6) Les dispositions du présent article ne sont pas applicables à une oeuvre si, ou dans la mesure où, celle-ci est protégée et si le droit d’auteur appartient aux Assemblées parlementaires (voir les articles 165 et 166).

Droit d’auteur sur les lois et mesures

164. 1) Sa Majesté est titulaire du droit d’auteur sur chaque loi du Parlement et chaque mesure (Measure) du Synode général de l’Eglise d’Angleterre.

2) Le droit d’auteur prend naissance dès la promulgation (Royal Assent) et reste valable jusqu’à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle a eu lieu la promulgation.

3) Dans la présente partie (exception faite de l’article163), toute mention du droit d’auteur de la Couronne doit être interprétée comme visant aussi le droit d’auteur découlant des dispositions du présent article et, exception faite du cas précité, les dispositions de la présente partie sont applicables au regard du droit d’auteur découlant du présent article au même titre qu’elles le sont à tout autre droit d’auteur de la Couronne.

4) Une loi ou une mesure ne fait l’objet d’aucun autre droit d’auteur ni d’aucun autre droit de même nature.

Droit d’auteur des Assemblées parlementaires

165. 1) Lorsqu’une oeuvre est créée par la Chambre des Communes ou la Chambre des Lords, ou sous sa direction ou son contrôle,

a) elle peut bénéficier de la protection au titre du droit d’auteur nonobstant les dispositions de l’article 153.1) (conditions ordinaires d’application de la protection), et

b) la chambre par laquelle, ou sous la direction ou le contrôle de laquelle, l’oeuvre est créée est le premier titulaire de tout droit d’auteur sur celle-ci, et si l’oeuvre est créée par les deux chambres, ou sous la direction ou le contrôle des deux chambres, celles-ci sont les premiers cotitulaires du droit d’auteur.

2) Le droit d’auteur sur une oeuvre de cette nature est dénommé, dans la présente partie, “droit d’auteur des Assemblées parlementaires”, bien qu’il puisse être, ou avoir été cédé, à une autre personne.

3) Le droit d’auteur reconnu aux Assemblées parlementaires sur une oeuvre littéraire, dramatique, musicale ou artistique reste valable jusqu’à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle l’oeuvre a été créée.

4) Aux fins du présent article, les d’œuvres créées par la Chambre des Communes ou la Chambre des Lords, ou sous sa direction ou son contrôle, comprennent

a) toute oeuvre créée par un fonctionnaire ou un employé de cette chambre dans le cadre de ses fonctions, et

b) tout enregistrement sonore ou tout film des débats de cette chambre et toute transmission en direct de ceux-ci dans une émission de radiodiffusion ou dans un programme distribué par câble;

toutefois, une oeuvre n’est pas réputée être créée par l’une ou l’autre des chambres ni sous sa direction ou son contrôle du seul fait qu’elle a été commandée par cette chambre ou pour son compte.

5) S’agissant d’une oeuvre de collaboration dont l’un ou plusieurs des auteurs, mais non la totalité d’entre eux, agissent pour le compte, ou sous la direction ou le contrôle, de la Chambre des Communes ou de la Chambre des Lords, les dispositions du présent article ne sont applicables qu’au regard de ces auteurs et du droit d’auteur correspondant à leur contribution à l’oeuvre.

6) Exception faite des cas précités et sous réserve de toute exception expressément prévue dans d’autres dispositions de la présente partie, cette dernière est applicable au regard du droit d’auteur des Assemblées parlementaires au même titre qu’à tout autre droit d’auteur.

7) Les dispositions du présent article sont aussi applicables, sous réserve de toute exception ou modification précisée par voie d’ordonnance en Conseil, aux d’œuvres créées par tout autre organe législatif d’un pays auquel s’étend la présente partie, ou sous la direction ou le contrôle de cet organe, et, dans la présente partie, toute mention du

“droit d’auteur des Assemblées parlementaires” doit être interprétée de manière correspondante.

8) Les ordonnances en Conseil prévues à l’alinéa 7) sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Droit d’auteur sur les projets ou propositions de loi

166. 1) Le droit d’auteur sur tout projet ou proposition de loi déposé devant le Parlement appartient, en application des dispositions suivantes, à l’une ou l’autre des chambres du Parlement.

2) Le droit d’auteur sur un projet ou une proposition de loi d’intérêt général (public Bill) appartient en premier lieu à la chambre devant laquelle il est déposé et, après avoir été transmis à l’autre chambre, aux deux chambres conjointement et prend naissance dès la date à laquelle le texte du projet ou de la proposition de loi est remis à la chambre devant laquelle il est déposé.

3) Le droit d’auteur sur un projet ou une proposition de loi d’intérêt local (private Bill) appartient aux deux chambres conjointement et prend naissance dès la date à laquelle une copie de ce projet ou de cette proposition est initialement déposée devant l’une ou l’autre des chambres.

4) Le droit d’auteur sur un projet ou une proposition de loi d’intérêt privé (personal Bill) appartient en premier lieu à la Chambre des Lords, puis aux deux chambres conjointement après avoir été transmis à la Chambre des Communes, et prend naissance dès la date à laquelle il est enregistré par la Chambre des Lords.

5) Le droit d’auteur découlant des dispositions du présent article prend fin

a) dès la promulgation (Royal Assent), ou b) si la loi n’est pas promulguée, dès le retrait ou le rejet du projet ou de la

proposition, ou à la fin de la session;

toutefois, un projet ou une proposition de loi repoussé par la Chambre des Lords au cours d’une session donnée demeure néanmoins protégé au titre du droit d’auteur si, en vertu des lois de 1911 et de 1949 sur le Parlement, il peut encore être soumis à la promulgation au cours de cette même session.

6) Dans la présente partie (exception faite de l’article165), toute mention du droit d’auteur des Assemblées parlementaires doit être interprétée comme visant aussi le droit d’auteur découlant des dispositions du présent article et, exception faite du cas précité, les dispositions de la présente partie sont applicables au regard du droit d’auteur découlant du présent article au même titre qu’à tout autre droit d’auteur des Assemblées parlementaires.

7) Un projet ou une proposition de loi ayant déjà été protégé en vertu des dispositions du présent article ne fait plus l’objet d’aucun droit d’auteur ni d’aucun autre droit de même nature, sans préjudice toutefois de l’application ultérieure des dispositions du présent article au regard d’un projet ou d’une proposition qui, n’ayant pas été adopté au cours d’une session donnée, est de nouveau déposé à une session ultérieure.

Chambres du Parlement: dispositions complémentaires concernant le droit d’auteur

167. 1) Aux fins de la jouissance, de l’exploitation et de la défense du droit d’auteur et à l’occasion de toute procédure judiciaire relative au droit d’auteur, chaque chambre du Parlement est réputée avoir la même capacité juridique qu’une personne morale, indépendamment de toute prorogation ou dissolution.

2) Les fonctions dévolues à la Chambre des Communes en tant que titulaire du droit d’auteur sont exercées pour le compte de celle-ci par son président (Speaker) et, avec l’autorisation de ce dernier ou en cas de vacance du poste de président, elles peuvent être remplies par le président de la Commission du budget ou par un vice-président.

3) A cette fin, une personne qui, à la date de la dissolution du Parlement, était président de la Chambre des Communes, président de la Commission du budget ou vice- président peut continuer à exercer ces fonctions jusqu’à ce qu’un nouveau titulaire soit nommé au poste considéré à la session suivante du Parlement.

4) Les fonctions dévolues à la Chambre des Lords en tant que titulaire du droit d’auteur sont exercées pour le compte de celle-ci par le secrétaire du Parlement (Clerk of the Parliaments) et, avec l’autorisation de ce dernier ou en cas de vacance du poste de secrétaire, elles peuvent être remplies par le secrétaire adjoint (Clerk Assistant) ou par le Reading Clerk.

5) Les procédures judiciaires relatives au droit d’auteur

a) sont intentées par la Chambre des Communes ou dirigées contre celle-ci au nom du président (The Speaker of the House of Commons); et

b) sont intentées par la Chambre des Lords ou dirigées contre celle-ci au nom du secrétaire du Parlement (The Clerk of the Parliaments).

Autres dispositions diverses

Droit d’auteur reconnu à certaines organisations internationales

168. 1) Lorsqu’une oeuvre littéraire, dramatique, musicale ou artistique originale a) est créée par un fonctionnaire ou un employé d’une organisation

internationale à laquelle le présent article est applicable ou publiée par cette organisation, et

b) ne remplit pas les conditions requises pour être protégée en vertu de l’article 154 (conditions d’application de la protection par rapport à l’auteur) ou de l’article 155 (conditions d’application de la protection par rapport au pays de la première publication), l’oeuvre est néanmoins protégée en vertu du présent article et l’organisation est le premier titulaire du droit d’auteur y relatif.

2) Les dispositions du présent article sont applicables aux organisations internationales à l’égard desquelles Sa Majesté a déclaré, par voie d’ordonnance en Conseil, cette application souhaitable.

3) Le droit d’auteur dont une organisation internationale est le premier titulaire en vertu des dispositions du présent article reste valable jusqu’à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle l’oeuvre a été créée ou d’une période de plus longue durée fixée par Sa Majesté par voie d’ordonnance en Conseil afin de respecter les obligations internationales assumées par le Royaume-Uni.

4) Une organisation internationale à laquelle s’appliquent les dispositions du présent article est réputée posséder, et avoir possédé à toute date déterminante, la capacité juridique d’une personne morale pour jouir du droit d’auteur, l’exploiter et le faire valoir de même qu’à l’occasion de toute procédure judiciaire relative au droit d’auteur.

5) Les ordonnances en Conseil sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Folklore, etc.: d’œuvres anonymes non publiées

169. 1) Lorsqu’il est démontré, à propos d’une oeuvre littéraire, dramatique, musicale ou artistique non publiée dont l’auteur est inconnu, que l’auteur (ou, s’agissant d’une oeuvre de collaboration, l’un des auteurs) était une personne apte à bénéficier de la protection du fait de ses liens avec un autre pays que le Royaume-Uni, il est présumé, jusqu’à preuve du contraire, qu’il remplissait les conditions requises pour bénéficier de la protection et que l’oeuvre est par conséquent protégée, sous réserve des dispositions de la présente partie.

2) Si, en vertu de la législation du pays en question, un organisme est chargé de protéger et de faire valoir le droit d’auteur sur ces d’œuvres, Sa Majesté peut, par voie d’ordonnance en Conseil, désigner ledit organisme aux fins du présent article.

3) Un organisme ainsi désigné est reconnu au Royaume-Uni comme ayant tout pouvoir d’accomplir, en lieu et place du titulaire du droit d’auteur, tout acte, à l’exception de la cession du droit d’auteur, qu’il est habilité à accomplir en vertu de la législation du pays considéré, et cet organisme peut notamment intenter des procédures en son nom propre.

5) A l’alinéa 1), l’expression “personne remplissant les conditions requises” désigne une personne qui, au moment déterminant (au sens de l’article154), était une personne dont les d’œuvres pouvaient bénéficier de la protection en vertu des dispositions dudit article.

6) Les dispositions du présent article ne sont pas applicables si le droit d’auteur sur l’oeuvre a été cédé par l’auteur et si cette cession a été notifiée à l’organisme désigné; en outre, aucune disposition du présent article n’a d’incidence sur la validité d’une cession du droit d’auteur opérée, ou d’une licence accordée, par l’auteur ou un ayant cause de l’auteur.

Dispositions transitoires et réserves

Dispositions transitoires et réserves

170. La première annexe comporte des dispositions transitoires et prévoit des réserves relatives aux d’œuvres créées, aux actes accomplis et aux événements survenus avant l’entrée en vigueur de la présente partie ainsi qu’à l’égard de l’application des dispositions de cette même partie.

Droits et privilèges découlant d’autres textes en vigueur ou de la common law

171. 1) Les dispositions de la présente partie ne portent en aucun cas atteinte a) à un droit ou privilège reconnu à une personne en vertu d’un texte en vigueur

(excepté lorsque celui-ci est expressément abrogé ou modifié par la présente loi);

b) à un droit ou privilège de la Couronne ne découlant pas d’un texte en vigueur;

c) à un droit ou privilège de l’une ou l’autre des chambres du Parlement; d) au droit de la Couronne ou de toute personne tenant son droit de celle-ci, de

vendre, d’utiliser ou d’exploiter de toute autre manière des objets confisqués en vertu de la législation relative aux douanes et aux contributions indirectes;

e) à l’application de toute règle d’équité relative aux abus de confiance. 2) Mis à part les présentes réserves, il n’existe aucun droit d’auteur ni aucun droit

de même nature autrement qu’en vertu des dispositions de la présente partie ou d’un autre texte adopté en vertu de celle-ci.

3) Aucune disposition de la présente partie ne saurait porter atteinte à une règle de droit s’opposant à l’exercice du droit d’auteur ou limitant celui-ci au titre de l’intérêt public ou pour d’autres motifs.

4) Les dispositions de la présente partie n’ont aucune incidence sur le droit d’exercer une action en justice ni sur aucun autre moyen de recours civil ou pénal pouvant être prévu par ailleurs au regard d’actes portant atteinte à l’un des droits conférés aux termes du chapitre IV (droit moral).

5) Les réserves formulées à l’alinéa 1) ont effet dans la limite des dispositions de l’article 164.4) et de l’article 166.7) (droit d’auteur sur les lois, mesures et projets de loi: exclusion d’autres droits de même nature que le droit d’auteur).

Interprétation

Dispositions générales relatives à l’interprétation

172. 1) La présente partie reprend et modifie la législation sur le droit d’auteur, à savoir les dispositions de la loi de 1956 sur le droit d’auteur et de ses modifications successives.

2) Une disposition de la présente partie qui correspond à une disposition de la législation antérieure ne saurait être interprétée comme s’écartant de celle-ci du simple fait d’un changement d’expression.

3) Les décisions prises en vertu de la législation antérieure peuvent être prises en compte pour déterminer si une disposition de la présente partie s’écarte de la législation antérieure ou pour déterminer par ailleurs l’interprétation correcte des dispositions de cette même partie.

Interprétation des mentions du titulaire du droit d’auteur

173. 1) Lorsque différentes personnes ont (par suite d’une cession partielle ou pour une autre raison) des droits sur différents éléments du droit d’auteur sur une oeuvre, le titulaire du droit d’auteur est, à toutes fins utiles dans le cadre de la présente partie, la personne habilitée à revendiquer l’élément du droit d’auteur pertinent dans le cas considéré.

2) Lorsque le droit d’auteur (ou tout élément de celui-ci) appartient en commun à plusieurs personnes, toute mention du titulaire du droit d’auteur figurant dans la présente partie doit être interprétée comme désignant l’ensemble des titulaires, de sorte, notamment, que toute disposition exigeant l’autorisation du titulaire du droit d’auteur doit être interprétée comme exigeant l’autorisation de l’ensemble d’entre eux.

Signification des termes “établissements d’enseignement” et d’expressions voisines

174. 1) Dans toute disposition de la présente partie, on entend par “établissement d’enseignement”

a) toute école, et b) toute autre catégorie d’établissements d’enseignement précisée aux fins de la

présente partie, ou de la disposition en question, par voie d’ordonnance du ministre.

2) Le ministre peut prévoir, par voie d’ordonnance, que les dispositions de la présente partie relatives aux établissements d’enseignement sont applicables, sous réserve des modifications et adaptations pouvant être précisées dans l’ordonnance, à l’égard des enseignants employés par une autorité locale compétente en matière d’enseignement pour dispenser un enseignement, ailleurs, à des élèves qui sont dans l’incapacité de se rendre dans un établissement d’enseignement.

3) A l’alinéa 1)a), le terme “école”

a) par rapport à l’Angleterre et au Pays de Galles, a la même signification que dans la loi de 1944 sur l’enseignement (Education Act, 1944);

b) par rapport à l’Ecosse, a la même signification que dans la loi écossaise de 1962 sur l’enseignement (Education (Scotland) Act 1962), sauf qu’il désigne aussi les écoles agréées au sens de la loi de 1968 sur l’assistance sociale (Social Work (Scotland) Act 1968); et

c) par rapport à l’Irlande du Nord, a la même signification que dans l’ordonnance de 1986 sur l’enseignement et les bibliothèques (Education and Libraries (Northern Ireland) Order 1986).

4) Une catégorie d’établissements d’enseignement peut être définie dans une ordonnance, en vertu des dispositions de l’alinéa 1)b), par renvoi aux dispositions pouvant périodiquement être adoptées en vertu de tout texte précisé dans l’ordonnance.

5) Dans la présente partie, par rapport à un établissement d’enseignement, les termes “enseignant” et “élève” désignent aussi, respectivement, toute personne qui donne et toute personne qui reçoit un enseignement.

6) Dans la présente partie, la mention d’un acte accompli “pour le compte d” ‘ un établissement d’enseignement vise tout acte accompli par une personne donnée pour les besoins de cet établissement.

Signification des termes “publication” et “publication commerciale”

175. 1) Dans la présente partie, le terme “publication”, par rapport à une oeuvre a) s’entend de la diffusion de copies ou d’exemplaires dans le public, et b) désigne aussi, s’agissant d’une oeuvre littéraire, dramatique, musicale ou

artistique, le fait de rendre celle-ci accessible au public au moyen d’un système de recherche électronique,

et les expressions connexes doivent être interprétées de manière correspondante.

2) Dans la présente partie, on entend par “publication commerciale”, par rapport à une oeuvre littéraire, dramatique, musicale ou artistique

a) la diffusion de copies ou d’exemplaires de l’oeuvre dans le public alors que des copies ou exemplaires fabriqués avant la réception de commandes sont généralement accessibles au public, ou

b) le fait de rendre l’oeuvre accessible au public au moyen d’un système de recherche électronique,

et les expressions connexes doivent être interprétées de manière correspondante.

3) S’agissant d’une oeuvre d’architecture revêtant la forme d’un édifice, ou d’une oeuvre artistique incorporée dans un édifice, la construction de l’édifice est réputée équivaloir à la publication de l’oeuvre.

4) Les actes suivants ne constituent pas une publication aux fins des dispositions de la présente partie et les mentions d’une publication commerciale doivent être interprétées de manière correspondante

a) s’agissant d’une oeuvre littéraire, dramatique ou musicale i) la représentation ou l’exécution de l’oeuvre, ou

ii) la radiodiffusion de l’oeuvre ou sa programmation dans un service de câblodistribution (excepté pour les besoins d’un système de recherche électronique);

b) s’agissant d’une oeuvre artistique i) l’exposition de l’oeuvre,

ii) la diffusion dans le public de copies ou d’exemplaires d’une oeuvre graphique représentant une oeuvre d’architecture revêtant la forme d’un édifice ou d’une maquette d’édifice, une sculpture ou une oeuvre artistique artisanale, ou de photographies de ces d’œuvres,

iii) la diffusion dans le public de copies d’un film dans lequel figure l’oeuvre, ou

iv) la radiodiffusion de l’oeuvre ou sa programmation dans un service de câblodistribution (excepté pour les besoins d’un système de recherche électronique);

c) s’agissant d’un enregistrement sonore ou d’un film i) la diffusion ou la projection publique de l’oeuvre, ou

ii) la radiodiffusion de l’oeuvre ou sa programmation dans un service de câblodistribution.

5) Dans la présente partie, les mentions de la publication ou de la publication commerciale ne doivent pas être interprétées comme visant aussi une publication purement apparente, qui n’est pas destinée à répondre aux besoins légitimes du public.

6) Un acte non autorisé n’est en aucun cas pris en compte aux fins du présent article.

Exigence de signature: application dans le cas des personnes morales

176. 1) Dans les dispositions suivantes, la condition voulant qu’un instrument soit signé par une personne ou en son nom est aussi remplie, dans le cas d’une personne morale, si l’instrument en question est muni du sceau de celle-ci

article 78.3)b) (revendication par le donneur de licence du droit à l’identification de l’auteur en cas d’exposition publique de copies ou d’exemplaires réalisés en application de la licence),

article 90.3) (cession du droit d’auteur),

article 91.1) (cession d’un droit d’auteur à venir),

article 92.1) (concession d’une licence exclusive).

2) Dans les dispositions suivantes, la condition voulant qu’un instrument soit signé par une personne donnée est considérée comme remplie, dans le cas d’une personne morale, si ledit instrument est signé au nom de la personne morale considérée ou muni du sceau de celle-ci

article 78.2)b) (revendication, constatée par écrit.

du droit de l’auteur à être identifié),

article 87.2) (renonciation au droit moral).

Adaptation d’expressions pour l’Ecosse

177. Dans l’application de la présente partie à l’Ecosse “account of profits” (reddition de comptes en vue de la restitution des bénéfices) signifie “accounting and payment of profits”;

“accounts” (comptes) signifie “count, reckoning and payment”;

“assignment” (cession) signifie “assignation”;

“costs” (frais et dépens) signifie “ expenses”;

“defendant” (défendeur) signifie “defender”;

“delivery up” (remise d’objets de contrefaçon) signifie “delivery”:

“estoppel” (irrecevabilité) signifie “personal bar”;

“injunction” (ordonnance) signifie “interdict”;

“interlocutory relief” (réparation provisoire) signifie “interim remedy”; et

“plaintiff” (demandeur) signifie “pursuer”.

Définitions annexes

178. Dans la présente partie “article”, par rapport à un périodique, désigne aussi une rubrique de quelque nature que ce soit;

“activité commerciale” désigne aussi tout métier, industrie ou profession;

“oeuvre collective” s’entend

a) d’une oeuvre de collaboration, ou b) d’une oeuvre comprenant des contributions distinctes de différents auteurs ou

dans laquelle sont incorporées des d’œuvres ou des parties d’œuvres de différents auteurs;

“créée par ordinateur”, par rapport à une oeuvre, signifie que l’oeuvre est créée par ordinateur dans des conditions excluant toute intervention humaine;

“pays” désigne aussi tout territoire;

“la Couronne” désigne également la représentation de la Couronne par le Gouvernement de sa Majesté en Irlande du Nord et dans tout autre pays que le Royaume-Uni auquel s’étendent les dispositions de la présente partie;

“électronique” signifie actionné par l’énergie électrique, magnétique, électromagnétique, électrochimique ou électromécanique et “sous forme électronique” signifie sous une forme se prêtant exclusivement à une utilisation à l’aide de moyens électroniques;

“employé”, “employeur” et “emploi” sont utilisés par rapport à un emploi dans le cadre d’un contrat de louage de services ou d’apprentissage;

“fac-similé” désigne aussi une copie en réduction ou un agrandissement;

“organisation internationale” s’entend d’une organisation qui compte parmi ses membres un ou plusieurs Etats;

“procédures judiciaires” désigne aussi les procédures engagées devant toute cour, toute personne ou tout tribunal habilité à se prononcer sur toute question touchant aux droits ou obligations juridiques d’un individu;

“procédures parlementaires” désigne aussi les procédures de l’Assemblée d’Irlande du Nord ou du Parlement européen;

“location” s’entend de tout arrangement en vertu duquel une copie ou un exemplaire d’une oeuvre est mis à disposition

a) à titre onéreux (moyennant une contrepartie pécuniaire ou autre), ou b) dans le cadre d’une activité commerciale, au titre des services ou moyens

fournis à titre onéreux,

à des conditions imposant ou rendant possible sa restitution;

“reproduction reprographique” désigne l’établissement de copies ou reproductions par procédé reprographique;

“procédé reprographique” s’entend d’un procédé

a) permettant d’établir des fac-similés, ou b) supposant le recours à un dispositif de reproduction en multiples exemplaires

et désigne également, par rapport à une oeuvre conservée sous forme électronique, toute reproduction à l’aide de moyens électroniques, mais ne comprend pas la réalisation d’un film ou d’un enregistrement sonore;

“mention suffisamment explicite de l’oeuvre” s’entend d’une mention identifiant l’oeuvre en question par son titre ou à l’aide d’autres indications et identifiant également l’auteur à moins que

a) s’agissant d’une oeuvre publiée, cette oeuvre soit anonyme, b) s’agissant d’une oeuvre non publiée, il ne soit pas possible de déterminer

l’identité de l’auteur malgré des recherches suffisantes;

“mention suffisamment explicite de non-responsabilité”, par rapport à un acte de nature à porter atteinte au droit conféré aux termes de l’article 80 (droit de s’opposer à toute atteinte à l’oeuvre), s’entend d’une indication claire et suffisamment apparente

a) donnée au moment de l’acte en question, et b) si l’auteur ou le réalisateur est ensuite identifié, accompagnant cette

identification,

et précisant que l’oeuvre a fait l’objet de modifications que l’auteur ou le réalisateur n’avait pas autorisées;

“système de télécommunication” s’entend d’un système d’acheminement d’images visuelles, de sons ou d’autres éléments à l’aide de moyens électroniques;

“caractère typographique” désigne également un motif ornemental utilisé en imprimerie;

“non autorisé”, au regard de tout acte accompli par rapport à une oeuvre, s’entend de tout acte accompli autrement que

a) par le titulaire du droit d’auteur ou avec son autorisation, ou b) si l’oeuvre n’est pas protégée, par l’auteur ou avec son autorisation ou, au cas

où l’article 11.2) aurait été applicable, par l’employeur de l’auteur ou avec son autorisation ou, dans l’un et l’autre cas, par leurs ayants cause ou avec l’autorisation de ces derniers, ou

c) en application de l’article48(reproduction, etc., de certains documents par la Couronne);

“télégraphie sans fil” s’entend de l’émission d’énergie électromagnétique suivant un trajet qui n’est pas délimité par une substance matérielle aménagée ou adaptée à cet effet;

“écrit” désigne également tout code ou notation, de quelque forme que ce soit, manuscrit ou non et quelle que soit la méthode par laquelle ou le support dans lequel ou sur lequel il est consigné, et l’adjectif ou le participe “écrit” doit être interprété de manière correspondante.

Index des termes faisant l’objet d’une définition

179. La liste qui suit énumère les dispositions définissant ou expliquant d’une autre manière des termes employés dans la présente partie (à l’exclusion des dispositions définissant ou expliquant un terme qui est employé uniquement dans l’article correspondant) reddition de comptes en vue de la restitution des bénéfices (en Ecosse)

article 177

actes réservés au titre du droit d’auteur article 16.1) adaptation article 21.3) archiviste (dans les articles 37à 43) article 37.6) article (d’un périodique) article 178 œuvre artistique article 4.1)

cession (en Ecosse) article 177 auteur articles 9 et 10.3) émission de radiodiffusion (et expressions connexes) article 6 édifice article 4.2) activité commerciale article 178 programme distribué par câble, service de câblodistribution (et expressions connexes)

article 7

œuvre collective article 178 entrée en vigueur (dans l’annexe 1) Paragraphe 1.2) de cette même

annexe publication commerciale article 175 créée par ordinateur article 178 copie ou exemplaire et reproduction article 17 droit d’auteur (en général) article premier droit d’auteur (dans l’annexe 1) Paragraphe 2.2) de cette même

annexe titulaire du droit d’auteur articles 101.2) et 173 tribunal du droit d’auteur article 145 œuvre protégée article 1.2) frais et dépens (en Ecosse) article 177 pays article 178 la Couronne article 178 droit d’auteur de la Couronne articles 163.2) et 164.3) défendeur (en Ecosse) article 177 remise d’objets de contrefaçon (en Ecosse) article 177 œuvre dramatique article 3.1) établissement d’enseignement article 174.1) à 4) électronique et sous forme électronique article 178 employé, employeur et emploi article 178 licence exclusive article 92.1) œuvres existantes (dans l’annexe 1) paragraphe 1.3) de cette même

annexe fac-similé article 178 film article 5 droit d’auteur futur article 91.2) licence générale (dans les articles 140 et 141) article 140.7) œuvre graphique article 4.2) copie ou exemplaire contrefait article 27 ordonnance (en Ecosse) article 177 réparation provisoire (en Ecosse) article 177 organisation internationale article 178 diffusion de copies ou d’exemplaires dans le public article 18.2) collaboration (oeuvre de) article 10.1) et 2) procédures judiciaires article 178 bibliothécaire (dans les articles 37à 43) article 37.6) licence (dans les articles 125 à 128) article 124

autorisation du titulaire du droit d’auteur articles 90.4), 91.3) et 173 organisme accordant des licences (dans le chapitre VII) article 116.2) Barème de licences (en général) article 116.1) Barème de licences (dans les articles 118 à 121) article 117 œuvre littéraire article 3.1) créée (par rapport à une oeuvre littéraire, dramatique ou musicale)

article 3.2)

œuvre musicale article 3.1) les nouvelles dispositions relatives au droit d’auteur (dans l’annexe 1)

Paragraphe 1.1) de cette même annexe

loi de 1911 (dans l’annexe 1) Paragraphe 1.1) de cette même annexe

loi de 1956 (dans l’annexe 1) Paragraphe 1.1) de cette même annexe

pour le compte de (par rapport à un établissement d’enseignement)

article 174.6)

droit d’auteur des Assemblées parlementaires articles 165.2) et 7) et 166.6) Procédures parlementaires article 178 Représentation ou exécution article 19.2) Photographie article 4.2) Demandeur (en Ecosse) article 177 Conditions prescrites (dans les articles 38à 43) article 37.1)b) Bibliothèque ou service d’archives désigné (dans les articles 38 à 43)

article 37.1)a)

Programme (en matière de radiodiffusion) article 6.3) Titulaire à venir (du droit d’auteur) article 91.2) Publication et expressions connexes article 175 édition publiée (par rapport au droit d’auteur sur la présentation typographique)

article 8

Élève article 174.5) Location article 178 Reproductions reprographiques article 178 Procédé reprographique article 178 Sculpture article 4.2) Signé article 176 Enregistrement sonore article 5 Mention suffisamment explicite de l’oeuvre article 178 Mention suffisamment explicite de non-responsabilité article 178 Enseignant article 174.5) Système de télécommunication article 178 Caractère typographique article 178 non autorisé (au regard d’un acte accompli par rapport à une oeuvre)

article 178

inconnu (par rapport à l’auteur d’une oeuvre) article 9.5) auteur inconnu (oeuvre d’) article 9.4) télégraphie sans fil article 178

œuvre (dans l’annexe 1) paragraphe 2.1) de cette même annexe

œuvres de plusieurs auteurs (dans le chapitre VII) article 116.4) écrit article 178

DEUXIEME PARTIE DROITS AFFÉRENTS AUX PRESTATIONS DES ARTISTES INTERPRÈTES OU EXÉCUTANTS

Dispositions liminaires

Droits conférés aux artistes interprètes ou exécutants et aux titulaires des droits d’enregistrement

180. 1) Les dispositions de la présente partie confèrent des droits a) aux artistes interprètes ou exécutants, en exigeant leur consentement pour

l’exploitation de leurs prestations (voir les articles 181à 184), et

b) aux titulaires des droits d’enregistrement par rapport à des prestations, en ce qui concerne les enregistrements réalisés sans leur autorisation ni celle des artistes interprètes ou exécutants (voir les articles 185à 188),

et définissent les délits tenant à l’exploitation ou à l’utilisation illicite d’enregistrements et à certains autres actes connexes (voir les articles 198et 201).

2) Dans la présente partie,

on entend par “prestation”

a) une interprétation dramatique (y compris dans le cadre d’un spectacle de danse et d’une pantomime),

b) une exécution musicale, c) une lecture ou récitation d’une oeuvre littéraire, ou d) une interprétation ou exécution dans le cadre d’un spectacle de variétés ou

une présentation similaire, dans la mesure où il s’agit d’une prestation en direct d’une ou de plusieurs personnes; et “registrement”, par rapport à une prestation, s’entend d’un film ou d’un enregistrement sonore

a) réalisé directement à partir de la prestation en direct, b) réalisé à partir d’une émission de radiodiffusion ou d’un programme distribué

par câble comprenant la prestation, ou

c) réalisé, directement ou indirectement, à partir d’un autre enregistrement de la prestation.

3) Les droits conférés aux termes des dispositions de la présente partie sont valables au regard des prestations ayant eu lieu avant l’entrée en vigueur de ces dispositions; toutefois, aucun acte accompli avant cette entrée en vigueur ou en application de dispositions prises avant celle-ci n’est considéré comme portant atteinte à ces droits.

4) Les droits conférés aux termes des dispositions de la présente partie sont indépendants

a) de tout droit d’auteur, patrimonial ou moral, afférent à toute oeuvre représentée ou exécutée ou à tout film ou enregistrement sonore de la prestation correspondante, ou encore à toute émission de radiodiffusion ou à tout programme distribué par câble comprenant cette prestation, et

b) de tout autre droit ou obligation découlant d’autres dispositions que celles de la présente partie.

Droits des artistes interprètes ou exécutants

Prestations protégées

181. Une prestation bénéficie de la protection aux fins des dispositions de la présente partie relatives aux droits des artistes interprètes ou exécutants si elle est celle d’une personne remplissant les conditions requises (au sens de l’article206) ou si elle a lieu dans un pays remplissant les conditions requises (au sens de cette même disposition).

Autorisation nécessaire pour l’enregistrement ou la transmission en direct d’une prestation

182. 1) Porte atteinte aux droits de l’artiste interprète ou exécutant quiconque, sans l’autorisation de ce dernier,

a) réalise, si ce n’est pour son usage personnel et privé, un enregistrement de la totalité d’une prestation bénéficiant de la protection ou d’une partie importante de celle-ci, ou

b) radiodiffuse en direct, ou transmet en direct dans un service de câblodistribution, la totalité ou une partie importante d’une prestation bénéficiant de la protection.

2) Dans une action pour atteinte aux droits d’un artiste interprète ou exécutant intentée en vertu des dispositions du présent article, le défendeur qui démontre que, au moment de l’acte incriminé, il avait des motifs valables de penser que l’autorisation avait été donnée ne peut être condamné à verser des dommages-intérêts.

Atteinte aux droits d’un artiste interprète ou exécutant résultant de l’utilisation d’un enregistrement réalisé sans autorisation

183. Porte atteinte aux droits d’un artiste interprète ou exécutant quiconque, sans l’autorisation de ce dernier,

a) projette ou diffuse en public la totalité ou une partie importante d’une prestation bénéficiant de la protection, ou

b) radiodiffuse ou programme dans un service de câblodistribution la totalité ou une partie importante d’une prestation bénéficiant de la protection

à l’aide d’un enregistrement réalisé sans l’autorisation de l’artiste interprète ou exécutant, en sachant ou en ayant des raisons de penser qu’il s’agit d’un enregistrement de cette nature.

Atteinte aux droits d’un artiste interprète ou exécutant résultant de l’importation, de la détention ou de l’exploitation d’un enregistrement illicite

184. 1) Porte atteinte aux droits d’un artiste interprète ou exécutant quiconque, sans l’autorisation de ce dernier,

a) importe au Royaume-Uni, si ce n’est pour son usage personnel et privé, ou b) a en sa possession, vend, loue, propose ou présente en vue de la vente ou de

la location ou met en circulation dans le cadre d’une activité commerciale,

un enregistrement illicite d’une prestation bénéficiant de la protection en sachant ou en ayant des raisons de penser qu’il s’agit d’un enregistrement de cette nature.

2) Lorsque, dans une action pour atteinte aux droits d’un artiste interprète ou exécutant intentée en vertu des dispositions du présent article, un défendeur démontre que l’enregistrement illicite a été acquis de bonne foi par lui-même ou par son prédécesseur en droit, la seule réparation qui puisse lui être réclamée est le versement de dommages- intérêts n’excédant pas un montant raisonnable au titre de l’acte incriminé.

3) A l’alinéa 2), l’expression “acquis de bonne foi” signifie que la personne ayant acquis l’enregistrement ne savait pas et n’avait aucune raison de penser qu’il s’agissait d’un enregistrement illicite.

Droits des titulaires des droits d’enregistrement

Contrats d’exclusivité en matière d’enregistrement et titulaires des droits d’enregistrement

185. 1) Dans la présente partie, on entend par “contrat d’exclusivité en matière d’enregistrement” un contrat conclu entre un artiste interprète ou exécutant et une autre personne, en vertu duquel cette denière est autorisée, à l’exclusion de toute autre (y compris l’artiste interprète ou exécutant), à réaliser des enregistrements d’une ou plusieurs des prestations de l’artiste considéré, en vue de leur exploitation commerciale.

2) Dans la présente partie, l’expression “titulaire des droits d’enregistrement”, par rapport à une prestation, désigne (sous réserve des dispositions de l’alinéa 3)), une personne

a) qui est partie à un contrat d’exclusivité en matière d’enregistrement s’appliquant à la prestation ou qui bénéficie d’un tel contrat, ou

b) à qui le bénéfice de ce contrat a été cédé, et qui est une personne remplissant les conditions requises.

3) Si l’enregistrement d’une prestation fait l’objet d’un contrat d’exclusivité mais si la personne visée à l’alinéa 2) n’est pas une personne remplissant les conditions requises, l’expression “titulaire des droits d’enregistrement”, par rapport à la prestation, désigne, dans la présente partie, toute personne

a) qui est autorisée, en vertu d’une licence concédée par la première personne mentionnée, à réaliser des enregistrements de la prestation en vue de leur exploitation commerciale, ou

b) à qui le bénéfice de cette licence a été cédé, et qui est une personne remplissant les conditions requises.

4) Dans le présent article, l’expression “en vue de l’exploitation commerciale” signifie en vue de la vente, de la location, de la projection ou de la diffusion en public des enregistrements.

Autorisation requise pour l’enregistrement d’une prestation faisant l’objet d’un contrat d’exclusivité

186. 1) Porte atteinte aux droits du titulaire des droits d’enregistrement par rapport à une prestation quiconque, sans l’autorisation dudit titulaire ni celle de l’artiste interprète ou exécutant, réalise un enregistrement de la totalité ou d’une partie importante de la prestation pour un usage autre que personnel et privé.

2) Dans une action pour atteinte à ces droits intentée en vertu du présent article, le défendeur qui démontre que, au moment de l’acte incriminé, il avait des motifs valables de penser que l’autorisation avait été donnée ne peut être condamné à verser des dommages-intérêts.

Atteinte aux droits d’enregistrement résultant de l’utilisation d’un enregistrement réalisé sans autorisation

187. 1) Porte atteinte aux droits du titulaire des droits d’enregistrement par rapport à une prestation quiconque, sans l’autorisation de ce dernier ou, s’agissant d’une prestation bénéficiant de la protection, sans l’autorisation de l’artiste interprète ou exécutant,

a) projette ou diffuse en public la totalité ou une partie importante de la prestation, ou

b) radiodiffuse ou programme dans un service de câblodistribution la totalité ou une partie importante de la prestation

l’aide d’un enregistrement réalisé sans l’autorisation voulue, en sachant ou en ayant des raisons de penser qu’il s’agit d’un enregistrement de cette nature.

2) A l’alinéa 1), les termes “autorisation voulue” désignent l’autorisation

a) de l’artiste interprète ou exécutant, ou

b) de la personne qui, à la date à laquelle l’autorisation a été donnée, était titulaire des droits d’enregistrement de la prestation (ou, si plusieurs personnes étaient titulaires de ces droits, de l’ensemble d’entre elles).

Atteinte aux droits d’enregistrement résultant de l’importation, de la détention ou de l’exploitation d’un enregistrement illicite

188. 1) Porte atteinte aux droits du titulaire des droits d’enregistrement par rapport à une prestation quiconque, sans l’autorisation de ce dernier ou, s’agissant d’une prestation bénéficiant de la protection, sans l’autorisation de l’artiste interprète ou exécutant,

a) importe au Royaume-Uni, si ce n’est pour son usage personnel et privé, ou b) a en sa possession, vend, loue, propose ou présente en vue de la vente ou de

la location ou met en circulation dans le cadre d’une activité commerciale

un enregistrement illicite de la prestation en sachant ou en ayant des raisons de penser qu’il s’agit d’un enregistrement de cette nature.

2) Lorsque, dans une action pour atteinte aux droits en question, intentée en vertu des dispositions du présent article, un défendeur démontre que l’enregistrement illicite a été acquis de bonne foi par lui-même ou par son prédécesseur en droit, la seule réparation qui puisse lui être réclamée est le versement de dommages-intérêts n’excédant pas un montant raisonnable au titre de l’acte incriminé.

Exceptions aux droits conférés

Actes autorisés malgré les droits conférés aux termes des dispositions de la présente partie

189. Les dispositions de l’annexe 2 précisent les actes qui peuvent être accomplis malgré les droits conférés aux termes des dispositions de la présente partie, ces actes correspondant pour l’essentiel à ceux qui sont définis au chapitre III de la première partie (actes autorisés malgré l’existence d’un droit d’auteur).

Pouvoir du tribunal de donner l’autorisation au nom de l’artiste interprète ou exécutant dans certains cas

190. 1) Le tribunal du droit d’auteur peut, à la demande d’une personne souhaitant faire un enregistrement d’un précédent enregistrement d’une prestation, donner l’autorisation requise au cas où

a) il n’est pas possible, malgré des recherches suffisantes, de déterminer l’identité de l’artiste interprète ou exécutant ni l’endroit où il se trouve, ou

b) un artiste interprète ou exécutant refuse abusivement son autorisation.

2) L’autorisation donnée par le tribunal est assimilée à celle de l’artiste interprète ou exécutant aux fins

a) des dispositions de la présente partie relatives aux droits des artistes interprètes ou exécutants, et

b) des dispositions de l’article 198.3)a) (responsabilité pénale: autorisation suffisante en ce qui concerne les prestations bénéficiant de la protection),

et peut être subordonnée à toute condition précisée dans la décision du tribunal.

3) Le tribunal ne peut donner d’autorisation en vertu des dispositions de l’alinéa 1)a) qu’après la signification ou la publication des notifications et avis pouvant être exigés aux termes des règlements édictés en vertu de l’article150(règles générales de procédure) ou que le tribunal peut ordonner dans un cas particulier.

4) Le tribunal ne peut donner d’autorisation en vertu des dispositions de l’alinéa 1)b) qu’après avoir acquis la conviction que le refus de l’artiste interprète ou exécutant de donner son autorisation n’est pas motivé par le souci de protéger ses intérêts légitimes; il appartient cependant r l’artiste interprète ou exécutant de démontrer le bien- fondé de son refus d’autorisation et le tribunal peut tirer de l’absence de preuve en ce sens les conclusions qui lui paraissent appropriées.

5) En toute hypothèse, le tribunal tient compte des facteurs suivants et détermine

a) si l’enregistrement original a été réalisé avec l’autorisation de l’artiste interprète ou exécutant et est licitement en la possession ou sous la surveillance de la personne proposant de faire le nouvel enregistrement;

b) si la réalisation du nouvel enregistrement est compatible avec les obligations incombant aux parties aux accords en vertu desquels, ou est par ailleurs compatible avec les buts dans lesquels, l’enregistrement original a été réalisé.

6) Lorsque le tribunal donne l’autorisation en vertu du présent article, il prend, à défaut d’accord entre le demandeur et l’artiste interprète ou exécutant, les décisions qui lui paraissent appropriées quant aux montants devant être versés à l’artiste interprète ou exécutant en contrepartie de l’autorisation donnée.

Durée et transmission des droits; autorisation

Durée des droits

191. Les droits conférés aux termes des dispositions de la présente partie restent valables, au regard d’une prestation, jusqu’à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle la prestation a eu lieu.

Transmission des droits

192. 1) Les droits conférés aux termes des dispositions de la présente partie ne sont pas cessibles ni transmissibles, si ce n’est en application des dispositions suivantes concernant la transmission des droits des artistes interprètes ou exécutants.

2) Au décès du titulaire des droits d’interprétation ou d’exécution

a) ces droits sont transmis à toute personne qu’il peut avoir expressément désignée par voie de disposition testamentaire, et

b) si ou dans la mesure où il n’existe aucune disposition en ce sens, ces droits peuvent être exercés par ses exécuteurs testamentaires;

dans la présente partie, l’expression “titulaire des droits d’interprétation ou d’exécution” doit être interprétée comme désignant la personne qui est, au moment considéré, habilitée à exercer les droits de l’artiste interprète ou exécutant.

3) Lorsque, en vertu des dispositions de l’alinéa 2)a), un droit devient de nature à être exercé par plus d’une personne, il peut l’être par chacune d’elles indépendamment de l’autre ou des autres.

4) Les dispositions qui précèdent n’ont aucune incidence sur celles de l’article 185.2)b) ou 3)b) dans la mesure où elles confèrent des droits en vertu de la présente partie à une personne à qui a été cédé le bénéfice d’un contrat ou d’une autorisation.

5) Tous dommages-intérêts recouvrés par les exécuteurs testamentaires en vertu des dispositions du présent article au titre d’une atteinte portée à un droit après le décès d’une personne sont transmissibles dans le cadre du patrimoine successoral au même titre que si le droit d’agir en justice avait subsisté et avait été reconnu à l’intéressé immédiatement avant son décès.

Autorisation

193. 1) L’autorisation requise aux fins des dispositions de la présente partie peut être donnée pour une prestation déterminée, pour une catégorie déterminée de prestations ou indifféremment pour toutes prestations et peut se rapporter à d’anciennes ou à de futures prestations.

2) Le titulaire des droits d’enregistrement d’une prestation est lié par toute autorisation donnée par la personne dont il tient ses droits en vertu du contrat d’exclusivité d’enregistrement ou de la licence en question, au même titre que s’il avait lui-même donné cette autorisation.

3) Lorsqu’un droit conféré aux termes des dispositions de la présente partie est transmis à une autre personne, toute autorisation liant le titulaire précédent s’impose à la personne à qui est transmis le droit au même titre que si elle avait elle-même donné cette autorisation.

Recours en cas d’atteinte aux droits

Atteinte aux droits susceptible de poursuites en tant que manquement à une obligation légale

194. Toute atteinte aux droits conférés aux termes des dispositions de la présente partie peut faire l’objet de poursuites de la part du titulaire du droit considéré en tant que manquement à une obligation légale.

Ordonnance tendant à la remise d’enregistrements illicites

195. 1) Lorsqu’une personne a en sa possession, sous sa garde ou sous sa surveillance, dans le cadre d’une activité commerciale, un enregistrement illicite d’une prestation, la personne qui est titulaire des droits d’interprétation ou d’exécution ou des droits d’enregistrement de la prestation en vertu des dispositions de la présente partie peut demander au tribunal d’ordonner que l’enregistrement lui soit remis ou qu’il soit remis à toute autre personne désignée par le tribunal.

2) Une requête à cet effet ne peut être présentée après l’expiration du délai précisé à l’article 203 et aucune ordonnance ne peut être prononcée si le tribunal ne rend pas également, ou n’estime pas qu’il existe des motifs de rendre, une ordonnance en vertu de l’article 204 (ordonnance relative à l’affectation d’enregistrements illicites).

3) S’il n’est pas rendu d’ordonnance en vertu de l’article204, la personne à qui un enregistrement est remis conformément à une ordonnance rendue en vertu du présent article doit le conserver en attendant qu’une ordonnance soit rendue, ou qu’il soit décidé de ne pas en rendre, en vertu dudit article.

4) Aucune disposition du présent article n’a d’incidence sur les autres prérogatives du tribunal.

Droit de saisir des enregistrements illicites

196. 1) Un enregistrement illicite d’une prestation qui est présenté en vue de la vente ou de la location ou qui est d’une autre manière directement mis en vente ou en location et à l’égard duquel une personne serait habilitée à demander qu’une ordonnance soit rendue en vertu de l’article 195, peut être saisi et conservé par l’intéressé ou par toute personne autorisée par ce dernier.

Le droit de saisie et de mainmise peut être exercé sous réserve des conditions suivantes et de toute décision prise par le tribunal en vertu de l’article204(ordonnance relative à l’affectation d’enregistrements illicites).

2) Avant toute saisie en vertu des dispositions du présent article, l’heure à laquelle et le lieu où il est envisagé d’opérer cette saisie doivent être communiqués à un poste de police local.

3) Aux fins de l’exercice du droit conféré aux termes des dispositions du présent article, toute personne peut pénétrer dans un lieu auquel le public a accès mais ne peut saisir aucun bien en la possession, sous la garde ou sous la surveillance d’une personne sur les lieux où celle-ci exerce à titre permanent ou régulier une activité industrielle ou commerciale et ne peut non plus faire usage de la force.

4) Lorsqu’une saisie est opérée en vertu du présent article, un avis établi dans la forme prescrite et contenant les mentions prescrites quant à la personne par laquelle ou sur l’autorité de laquelle la saisie est opérée et les motifs sur lesquels elle repose doit être laissé sur les lieux.

5) Dans le présent article,

le terme “lieu” désigne aussi tout terrain, édifice, structure fixe ou mobile, véhicule, navire, aéronef ou aéroglisseur; et

on entend par “prescrit” prescrit par ordonnance du ministre.

6) Les ordonnances prises par le ministre en vertu des dispositions du présent article sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Signification de l’expression “enregistrement illicite”

197. 1) Dans la présente partie, l’expression “enregistrement illicite”, par rapport à une prestation, doit être interprétée conformément aux dispositions du présent article.

2) Aux fins des droits d’un artiste interprète ou exécutant, l’enregistrement de la totalité ou d’une partie importante d’une prestation de ce dernier est un enregistrement illicite s’il est réalisé, autrement qu’à des fins privées, sans son autorisation.

3) Aux fins des droits du titulaire des droits d’enregistrement, un enregistrement de la totalité ou d’une partie importante d’une prestation dont l’enregistrement fait l’objet d’un contrat d’exclusivité est un enregistrement illicite s’il est réalisé, autrement qu’à des fins privées, sans l’autorisation de l’intéressé ni celle de l’artiste interprète ou exécutant.

4) Aux fins des articles 198 et 199 (délits et ordonnances tendant à la remise d’enseignements illicites dans le cadre d’une procédure pénale), un enregistrement est illicite s’il est illicite aux fins mentionnées à l’alinéa 2) ou à l’alinéa 3).

5) Dans la présente partie, l’expression “enregistrement illicite” désigne aussi un enregistrement assimilé à un enregistrement illicite en vertu des dispositions suivantes de l’annexe 2

paragraphe 4.3) (enregistrements réalisés à des fins didactiques ou en vue d’un examen),

paragraphe 6.2) (enregistrements réalisés par des établissements d’enseignement pour les besoins de leurs activités).

paragraphe 12.2) (enregistrements de prestation sous forme électronique conservés après cession de l’enregistrement principal), ou

paragraphe 16.3) (enregistrements réalisés aux fins de la radiodiffusion ou d’un programme distribué par câble).

elle ne s’applique toutefois à aucun autre enregistrement réalisé en application des dispositions de l’annexe précitée.

6) Aux fins des dispositions du présent article, le lieu où l’enregistrement a été réalisé n’entre pas en ligne de compte.

Délits

Responsabilité pénale liée à la réalisation, à l’exploitation ou à l’utilisation d’enregistrements illicites

198. 1) Se rend coupable d’un délit quiconque, sans autorisation suffisante,

a) réalise en vue de la vente ou de la location, b) importe au Royaume-Uni, si ce n’est pour son usage personnel et privé, c) a en sa possession dans le cadre d’une activité commerciale, en vue

d’accomplir un acte portant atteinte aux droits conférés aux termes des dispositions de la présente partie, ou

d) dans le cadre d’une activité commerciale i) vend ou loue.

ii) propose ou présente en vue de la vente ou de la location, ou

iii) met en circulation

un enregistrement illicite en sachant ou en ayant des raisons de penser qu’il s’agit d’un enregistrement de cette nature.

2) Se rend coupable d’un délit quiconque fait

a) projeter ou diffuser en public, ou b) radiodiffuser ou programmer dans un service de câblodistribution

un enregistrement d’une prestation réalisé sans autorisation suffisante, et porte par là même atteinte à un droit conféré aux termes des dispositions de la présente partie, en sachant ou en ayant des raisons de penser que l’acte considéré constitue une violation de ce droit.

3) Aux alinéas 1) et 2), on entend par “autorisation suffisante”

a) s’agissant d’une prestation bénéficiant de la protection, l’autorisation de l’artiste interprète ou exécutant, et

b) s’agissant d’une autre prestation faisant l’objet d’un contrat d’exclusivité en matière d’enregistrement

i) aux fins de l’alinéa 1)a)(réalisation de l’enregistrement), l’autorisation de l’artiste interprète ou exécutant ou du titulaire des droits d’enregistrement, et

ii) aux fins de l’alinéa 1)b), c) et d) et de l’alinéa 2) (exploitation ou utilisation de l’enregistrement), l’autorisation du titulaire des droits d’enregistrement.

Dans le présent alinéa, l’expression “titulaire des droits d’enregistrement” désigne la personne titulaire de ces droits à la date à laquelle l’autorisation est donnée ou, si plusieurs personnes sont titulaires de ces droits, l’ensemble d’entre elles.

4) Aucun délit n’est commis en vertu des dispositions de l’alinéa 1) ou 2) du fait d’un acte qui, en vertu de toute disposition de l’annexe 2, peut être accompli sans porter atteinte aux droits conférés aux termes des dispositions de la présente partie.

5) Toute personne coupable d’un délit en vertu des dispositions de l’alinéa 1)a), b) ou d)iii) est passible

a) après condamnation en procédure simplifiée, d’un emprisonnement de six mois au plus, d’une amende n’excédant pas le maximum légal ou de ces deux peines conjointement;

b) après condamnation à la suite d’une inculpation, d’une amende, d’un emprisonnement de deux ans au plus ou de ces deux peines conjointement.

6) Quiconque se rend coupable d’un autre délit en vertu des dispositions du présent article est passible, après condamnation en procédure simplifiée, d’une amende à concurrence du degré 5 du barème général, d’un emprisonnement de six mois au plus ou de ces deux peines conjointement.

Ordonnance tendant à la remise d’enregistrements illicites dans le cadre d’une procédure pénale

199. 1) Le tribunal devant lequel une personne est poursuivie au titre d’un délit réprimé en vertu de l’article198 peut, s’il acquiert la conviction que, au moment où elle a été arrêtée ou incriminée, cette personne avait en sa possession, sous sa garde ou sous sa surveillance, dans le cadre d’une activité commerciale, un enregistrement illicite d’une prestation, ordonner que cet enregistrement soit remis au titulaire des droits d’interprétation ou d’exécution ou des droits d’enregistrement de cette prestation ou à toute autre personne qu’il peut désigner.

2) A cette fin, une personne est considérée comme incriminée

a) en Angleterre, au Pays de Galles et en Irlande du Nord, lorsqu’elle est incriminée verbalement ou fait l’objet d’une signification ou d’une inculpation;

b) en Ecosse, lorsqu’elle fait l’objet d’une mise en garde, d’une incrimination, d’une plainte ou d’une inculpation.

3) Le tribunal peut rendre une ordonnance de sa propre initiative ou à la demande du ministère public (prosecutor) (ou, en Ecosse, Lord Advocate ou procurator-fiscal), indépendamment du fait que la personne soit ou non reconnue coupable du délit, mais en aucun cas

a) après l’expiration du délai précisé à l’article203 (remise d’enregistrements illicites: forclusion), ou

b) s’il lui paraît improbable qu’une ordonnance soit rendue en vertu de l’article 204 (ordonnance relative à l’affectation d’enregistrements illicites).

4) Toute ordonnance rendue en vertu du présent article par un tribunal répressif inférieur (magistrates’ court) est susceptible de recours

a) en Angleterre et au Pays de Galles, devant la juridiction répressive supérieure (Crown Court), et

b) en Irlande du Nord, devant le county court; en Ecosse, lorsqu’une ordonnance a été rendue en vertu du présent article, la personne à qui a été retiré l’enregistrement illicite qui était en sa possession, sous sa garde ou sous sa surveillance peut, sans préjudice de toute autre voie de recours légale, faire

appel de cette ordonnance dans les mêmes conditions que s’il s’agissait d’une condamnation.

5) Toute personne à qui est remis un enregistrement illicite en application d’une ordonnance rendue en vertu du présent article doit le conserver en attendant que soit rendue une ordonnance, ou que soit prise la décision de ne pas rendre d’ordonnance, en vertu de l’article 204.

6) Aucune disposition du présent article ne porte atteinte aux pouvoirs reconnus au tribunal en vertu de l’article 43 de la loi de 1973 sur les pouvoirs des tribunaux répressifs (Powers of Criminal Courts Act 1973), de l’article 223ou 436 de la loi de 1975 (Ecosse) sur la procédure pénale (Criminal Procedure (Scotland) Act 1975) ou de l’article 7 de l’ordonnance de 1980 (Irlande du Nord) sur la justice pénale (Criminal Justice (Northern Ireland) Order 1980) (dispositions générales applicables en matière de confiscation dans le cadre de procédures pénales).

Mandats de perquisition

200. 1) Lorsqu’un juge de paix (en Ecosse, sheriff ou justice of the peace) acquiert la conviction, à la suite d’une déclaration sous serment d’un fonctionnaire de police (constable) (en Ecosse, par evidence on oath) qu’il existe des motifs légitimes de supposer

a) qu’un délit réprimé en vertu de l’article198.1)a), b) ou d)iii) (délits tenant à la réalisation, à l’importation ou à la mise en circulation d’enregistrements illicites) a été ou est sur le point d’être commis en quelque lieu que ce soit, et

b) que la preuve que le délit a été ou est sur le point d’être commis se trouve en ce lieu,

il peut délivrer un mandat autorisant un fonctionnaire de police à pénétrer sur les lieux et à y perquisitionner, en ayant au besoin recours à la force.

2) Les pouvoirs conférés en vertu de l’alinéa 1) ne s’étendent pas, en Angleterre et au Pays de Galles, à la faculté d’autoriser une perquisition portant sur des objets du type visé à l’article 9.2) de la loi de 1984 sur les preuves en matière policière et pénale (Police and Criminal Evidence Act 1984) (certaines catégories d’objets de caractère personnel ou confidentiel).

3) Un mandat délivré en vertu de l’alinéa 1)

a) peut autoriser des personnes à accompagner le fonctionnaire chargé d’en assurer l’exécution, et

b) est valable pendant 28 jours à compter de la date de sa délivrance. 4) Dans le présent article, le terme “lieu” désigne aussi tout terrain, édifice,

structure fixe ou mobile, véhicule, navire, aéronef ou aéroglisseur.

Déclaration mensongère quant à la compétence pour donner une autorisation

201. 1) Commet un délit quiconque déclare faussement être autorisé par un tiers à donner une autorisation aux fins des dispositions de la présente partie en ce qui concerne une prestation, à moins que l’intéressé ne soit fondé à croire qu’il est ainsi autorisé.

2) Toute personne coupable d’un délit réprimé en vertu du présent article est passible, après condamnation en procédure simplifiée, d’un emprisonnement de six mois au plus, d’une amende à concurrence du degré 5 ou de ces deux peines conjointement.

Délits commis par des personnes morales: responsabilité des dirigeants

202. 1) Lorsqu’il est prouvé qu’un délit réprimé en vertu des dispositions de la présente partie a été commis par une personne morale avec l’autorisation ou la complicité d’un directeur, d’un administrateur, d’un secrétaire ou d’un autre dirigeant, ou d’une personne prétendant agir à ce titre, l’intéressé et la personne morale sont l’un et l’autre coupables du délit et passibles de poursuites et des sanctions correspondantes.

2) Dans le cas d’une personne morale dont les activités sont gérées par les membres, on entend par “directeur” un membre de la personne morale.

Dispositions supplémentaires concernant la remise et la saisie d’enregistrements illicites

Remise d’enregistrements illicites: forclusion

203. 1) Une requête en vue de la délivrance d’une ordonnance en vertu de l’article 195 (ordonnance tendant à la remise d’enregistrements illicites dans le cadre d’une procédure civile) ne peut être présentée après l’expiration d’un délai de six ans à compter de la date à laquelle l’enregistrement illicite en question a été réalisé, sous réserve des dispositions suivantes.

2) Si, pendant la totalité ou une partie de la période considérée, une personne habilitée à demander la délivrance d’une ordonnance

a) est frappée d’incapacité, ou b) est victime d’agissements frauduleux ou de dissimulations qui s’opposent à

ce qu’elle puisse avoir connaissance des faits l’autorisant à demander la délivrance de cette ordonnance, la requête en délivrance d’une ordonnance peut être présentée à tout moment avant l’expiration d’un délai de six ans à compter de la date à laquelle l’incapacité a pris fin ou, selon le cas, à compter de la date à laquelle la personne intéressée était à même de découvrir les faits en prenant toutes mesures utiles.

3) A l’alinéa 2), le terme “incapacité” (disability) a) en Angleterre et au Pays de Galles, a le même sens que dans la loi dite

Limitation Act de 1980; b) en Ecosse, désigne une incapacité légale au sens de la loi dite Prescription

and Limitations (Scotland) Act de 1973; c) en Irlande du Nord, a le même sens que dans la loi dite Statute of Limitation

(Northern Ireland) de 1958. 4) Une ordonnance selon l’article 199 (ordonnance tendant à la remise

d’enregistrements illicites dans le cadre d’une procédure pénale) ne peut en aucun cas

être rendue après l’expiration d’un délai de six ans à compter de la date à laquelle l’enregistrement illicite en question a été réalisé.

Ordonnance relative à l’affectation d’enregistrements illicites

204. 1) Le tribunal peut être saisi d’une requête l’invitant à rendre une ordonnance tendant à ce qu’un enregistrement illicite d’une prestation remis en application d’une ordonnance rendue en vertu de l’article195 ou 199, ou saisi et conservé en vertu du droit conféré aux termes des dispositions de l’article 196,

a) soit confisqué au profit d’une personne que le tribunal peut désigner et qui est titulaire des droits d’interprétation ou d’exécution ou des droits d’enregistrement de la prestation, ou

b) soit détruit ou qu’il en soit disposé de toute autre manière que le tribunal peut estimer appropriée,

ou à décider de ne pas rendre d’ordonnance de cette nature.

2) Pour déterminer la nature de l’ordonnance à rendre (le cas échéant), le tribunal examine si d’autres réparations pouvant être obtenues à la suite d’une action pour atteinte aux droits conférés aux termes des dispositions de la présente partie seraient de nature à indemniser le ou les titulaires des droits et à protéger leurs intérêts.

3) Le règlement du tribunal comporte des dispositions concernant la signification d’avis aux personnes ayant des droits sur l’enregistrement en question et chacune d’elle est habilitée

a) à intervenir dans la procédure de délivrance d’une ordonnance en vertu du présent article, qu’un avis lui ait ou non été signifié, et

b) à former un recours contre toute ordonnance rendue en vertu du présent article, qu’elle soit ou non intervenue dans la procédure;

4) Lorsque plusieurs personnes ont des droits sur un enregistrement, le tribunal peut rendre l’ordonnance qu’il estime équitable et peut (notamment) ordonner que cet enregistrement soit vendu ou qu’il en soit disposé d’une autre manière et que produit de l’opération soit réparti entre les intéressés.

5) Si le tribunal décide de ne pas rendre d’ordonnance en vertu du présent article, la personne en la possession de laquelle ou sous la garde ou la surveillance de laquelle se trouvait l’enregistrement avant d’être remis ou saisi peut en exiger la restitution.

6) Dans le présent article, l’expression “personne ayant des droits sur un enregistrement” désigne aussi toute personne en faveur de laquelle une ordonnance pourrait être rendue en ce qui concerne cet enregistrement, soit en vertu du présent article, soit en vertu de l’article 114 ou 231 de la présente loi ou encore de l’article 58C de la loi de 1938 sur les marques (qui comportent des dispositions comparables en ce qui concerne les atteintes au droit d’auteur, au droit de modèle et aux marques).

Compétence des “county court” et “sheriff court”

205. 1) En Angleterre, au Pays de Galles et en Irlande du Nord, un county court peut connaître des procédures engagées en vertu

de l’article 195 (ordonnance tendant à la remise d’enregistrements illicites), ou de l’article 204 (ordonnance relative à l’affectation d’enregistrements illicites),

lorsque la valeur des enregistrements illicites en question ne dépasse pas le montant limite déterminant la compétence du county court en matière de responsabilité civile.

2) En Ecosse, les procédures tendant à obtenir une ordonnance en vertu de l’une ou l’autre des dispositions précitées peuvent être engagées devant le sheriff court.

3) Aucune disposition du présent article ne saurait être interprétée comme ayant une incidence sur la compétence de la Haute Cour (High Court) ou, en Ecosse, de la Court of Session.

Conditions d’application et étendue de la protection

Pays et personnes physiques et morales remplissant les conditions requises

206. 1) Dans la présente partie, on entend par “pays remplissant les conditions requises”

a) le Royaume-Uni, b) un autre Etat membre de la Communauté économique européenne, ou c) dans la mesure où une ordonnance édictée en vertu de l’article208le prévoit,

un pays désigné en vertu dudit article comme jouissant de la réciprocité en matière de protection;

“personne physique remplissant les conditions requises”, un citoyen ou sujet d’un pays remplissant les conditions requises ou une personne physique résidant dans ce pays, et

“personne remplissant les conditions requises” une personne physique remplissant les conditions requises ou une personne morale ou autre entité ayant la personnalité morale

a) qui est constituée conformément à la législation d’une partie du Royaume- Uni ou d’un autre pays remplissant les conditions requises, et

b) qui a, dans tout pays remplissant les conditions requises, un établissement dans lequel sont menées d’importantes activités industrielles ou commerciales.

2) Dans la définition de la “personne physique remplissant les conditions requises”, la mention d’une personne qui est citoyen ou sujet d’un pays remplissant les conditions requises doit être interprétée comme désignant

a) par rapport au Royaume-Uni, un citoyen britannique, et b) par rapport à une colonie du Royaume-Uni, un citoyen des territoires

britanniques dépendants par rattachement à cette colonie.

3) Pour déterminer, aux fins de la définition de la “personne remplissant les conditions requises”, si des activités industrielles ou commerciales importantes sont menées dans un établissement sis dans un pays déterminé, il n’est pas tenu compte des transactions portant sur des produits qui ne se trouvent à aucun moment déterminant sur le territoire de ce pays.

Pays auxquels s’étend la présente partie

207. Les dispositions de la présente partie s’étendent à l’Angleterre et au Pays de Galles, à l’Ecosse et à I’Irlande du Nord.

Pays jouissant de la réciprocité en matière de protection

208. 1) Sa Majesté peut, par ordonnance en Conseil, désigner comme jouissant de la réciprocité en matière de protection en vertu des dispositions de la présente partie

a) un pays partie à une convention, ou b) un pays à l’égard duquel Sa Majesté a acquis la conviction que des

dispositions ont été ou seront prises en vertu de la législation applicable afin d’assurer une protection adéquate aux prestations britanniques.

2) On entend par “pays partie à une convention” un pays partie à une convention relative aux droits des artistes interprètes ou exécutants à laquelle le Royaume-Uni est aussi partie.

3) On entend par “prestation britannique” une prestation

a) qui est donnée par une personne physique ayant la citoyenneté britannique ou résidant au Royaume-Uni, ou

b) qui a lieu au Royaume-Uni. 4) Si la législation du pays considéré n’assure une protection adéquate qu’à

certaines catégories de prestations, une ordonnance désignant ce pays, édictée en vertu de l’alinéa 1)b), doit comporter des dispositions limitant de manière correspondante la protection accordée aux termes des dispositions de la présente partie à l’égard des prestations liées à ce pays.

5) Le pouvoir conféré aux termes des dispositions de l’alinéa 1)b) peut être exercé à l’égard de toute île anglo-normande, de I’Ile de Man ou de toute colonie du Royaume- Uni, au même titre qu’à l’égard d’un pays étranger.

6) Les ordonnances en Conseil prévues aux termes du présent article sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Eaux territoriales et plateau continental

209. 1) Aux fins de la présente partie, les eaux territoriales du Royaume-Uni sont considérées comme faisant partie intégrante de ce pays.

2) Les dispositions de la présente partie sont applicables aux actes accomplis dans la zone du plateau continental du Royaume-Uni sur une structure ou un navire dont la

présence sur ce plateau est directement liée à l’exploration des fonds ou du sous-sol marins ou à l’exploitation de leurs ressources naturelles, au même titre qu’elles le sont aux actes accomplis au Royaume-Uni.

3) La zone du plateau continental du Royaume-Uni s’entend des zones précisées par voie d’ordonnance en vertu de l’article 1.7) de la loi de 1964 sur le plateau continental (Continental Shelf Act 1964).

Navires, aéronefs et aéroglisseurs britanniques

210. 1) Les dispositions de la présente partie sont applicables aux actes accomplis à bord d’un navire, d’un aéronef ou d’un aéroglisseur britannique au même titre qu’elles le sont aux actes accomplis au Royaume-Uni.

2) Dans le présent article, on entend par

“aéronef britannique” et “aéroglisseur britannique” un aéronef ou un aéroglisseur immatriculé au Royaume-Uni.

Interprétation

Termes ayant le même sens que dans les dispositions relatives au droit d’auteur

211. 1) Les termes suivants ont le même sens dans la présente partie que dans la première partie (droit d’auteur)

émission de radiodiffusion, activité commerciale, programme distribué par câble, service de câblodistribution, pays, défendeur (en Ecosse), remise (en Ecosse), film, œuvre littéraire, publié, et enregistrement sonore.

2) Les dispositions de l’article 6.3) à 5), de l’article7.5) et de l’article 19.4) (dispositions supplémentaires relatives à la radiodiffusion et aux services de câblodistribution) sont applicables aux fins de la présente partie et au regard de toute atteinte aux droits conférés aux termes de la présente partie, au même titre qu’elles le sont aux fins de la première partie et au regard de toute atteinte au droit d’auteur.

Index de termes faisant l’objet d’une définition

212. La liste qui suit indique les dispositions définissant ou expliquant d’une autre manière des termes employés dans la présente partie (à l’exclusion des dispositions définissant ou expliquant un terme qui est employé uniquement dans l’article correspondant) émission de radiodiffusion (et expressions connexes) article 211 (et article 6) activité commerciale article 211.1) (et article 178) programme distribué par câble, service de câblodistribution (et expressions connexes)

article 211 (et article 7)

pays article 211.1) (et article 178) défendeur (en Ecosse) article 211.1) (et article 177) remise (en Ecosse) article 211.1) (et article 177) contrat d’exclusivité en matière d’enregistrement article 185.1) film article 211.1) (et article 5) enregistrement illicite article 197 oeuvre littéraire article 211.1) (et article 3.1) prestation article 180.2) publié article 211.1) (et article 175) pays remplissant les conditions requises article 206.1) personne physique remplissant les conditions requises article 206.1) et 2) prestation bénéficiant de la protection article 181 personne remplissant les conditions requises article 206.1) et 3) enregistrement (d’une prestation) article 180.2) droits d’enregistrement (titulaire des) article 185.2) et 3) Enregistrement sonore article 211.1) (et article 5).

Loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets

(du 15 novembre 1988)*

Chapitre 48

(Extraits)

TABLE DES MATIÈRES

…1

* Titre abrégé anglais: Copyright, Designs and Patents Act 1988. Entrée en vigueur des dispositions reproduites ici: Ve partie: …; VIe partie: 1er août 1989, à l'exception des articles 293 et 294, ainsi que de l'article 295 en ce qui concerne les paragraphes 1 à 11 et 17 à 30 de l'annexe 5. Source: Communication des autorités du Royaume-Uni. 1 La Ire partie (Droit d'auteur) et la IIe partie (Droits afférents à des représentations ou exécutions) ont paru dans les Lois et traités de droit d'auteur et de droits voisins; pour la IIIc partie (Droit de modèle) et la IVc partie (Dessins et modèles enregistrés), voir les Lois

274. Personnes autorisées à exercer une activité d’agent de brevets

275. Registre des agents de brevets

276. Qualité d’agent de brevets

277. Qualité de mandataire en brevets européens, etc.

278. Usage des expressions «conseil en brevets» et «mandataire en brevets»: dispositions complémentaires

279. Pouvoir de prescrire les conditions, etc., que doivent remplir les sociétés de personnes et les personnes morales comprenant des associés habilités et des associés non habilités

280. Exemption de l’obligation de divulgation pour les communications avec des agents de brevets

281. Pouvoir du contrôleur de refuser de traiter avec certains agents

Agents de marques

282. Registre des agents de marques

283. Interdiction de présenter des personnes non inscrites au registre comme étant des agents de marques agréés

284. Exemption de l’obligation de divulgation pour les communications avec des agents de marques agréés

Dispositions complémentaires

285. Délits commis par des sociétés de personnes et des personnes morales

286. Interprétation

VIc Partie Brevets Tribunaux des brevets de comté

287. Tribunaux des brevets de comté: compétence spéciale

288. Limitation du montant de la valeur litigieuse dans les affaires relevant de la compétence spéciale des tribunaux des brevets de comté

et traités de propriété industrielle, ROYAUME-UNI — Textes 4-001 et 4-002; la VII° partie (Dispositions diverses et générales) et les annexes ne sont pas reproduites ici.

289. Renvoi d’affaires entre la Haute Cour et les tribunaux des brevets de comté

290. Limitation du montant des frais de représentation lorsqu’une demande de réparation pécuniaire aurait pu être portée devant un tribunal des brevets de comté

291. Procédure devant un tribunal des brevets de comté

292. Droits et obligations des agents de brevets agréés en ce qui concerne des affaires se déroulant devant les tribunaux des brevets de comté

Licences de plein droit en ce qui concerne certains brevets

293. Limitation à l’accomplissement d’actes autorisés en vertu de certaines licences

294. Date à laquelle une requête en fixation des conditions d’une licence peut être présentée

Brevets: modifications diverses

295. Brevets: modifications diverses

Vc partie Agents de brevets et agents de marques Agents de brevets

Article

Vc PARTIE AGENTS DE BREVETS ET AGENTS DE MARQUES

Agents de brevets

(Personnes autorisées à exercer une activité d’agent de brevets)

274. — 1) Tout personne physique, agissant seule ou dans le cadre d’une société de personnes [partnership], ou toute personne morale [body corporate] peut, sous réserve des dispositions suivantes de la présente partie, exercer une activité de mandataire aux fins

a) de déposer des demandes de brevet et d’obtenir des brevets, au Royaume-Uni et ailleurs, ou

b) de mener des procédures relatives à des demandes de brevet ou à des brevets par-devant le contrôleur.

2) La disposition qui précède n’a pas d’incidence sur toute limitation prévue, dans la Convention sur le brevet européen, au sujet des personnes autorisées à agir pour le compte de tiers à toute fin concernant des brevets européens.

(Registre des agents de brevets)

275. — 1) Le ministre [Secretary of State] peut édicter des dispositions réglementaires exigeant la tenue d’un registre des personnes qui agissent en qualité de mandataires aux fins de déposer des demandes de brevet ou d’obtenir des brevets; dans la présente partie, «agent de brevets agréé» [registered patent agent] s’entend d’une personne dont le nom est inscrit au registre tenu en vertu du présent article.

2) Les dispositions réglementaires peuvent comporter toute disposition que le ministre estime appropriée pour réglementer l’inscription de personnes et, notamment,

a) exiger le paiement des taxes qui peuvent être prescrites et b) autoriser, dans les cas prescrits, la radiation du nom d’une personne inscrite au

registre des agents de brevets ou la suspension des effets de son inscription.

3) Les dispositions réglementaires peuvent déléguer la tenue du registre à une autre personne en conférant à celle-ci

a) le pouvoir d’édicter des règles i) relatives au paiement de taxes, dans les cas et sous réserve des limites

prescrits par les dispositions réglementaires et

ii) relatives à toute autre question susceptible de faire l’objet de dispositions réglementaires, ainsi que

b) d’autres fonctions, y compris des fonctions disciplinaires, qui peuvent être prescrites par voie de dispositions réglementaires.

4) Les dispositions réglementaires édictées en application du présent article sont susceptibles d’annulation conformément à une résolution de l’une ou l’autre des Chambres du Parlement.

(Qualité d’agent de brevets)

276. — 1) Une personne physique qui n’est pas un agent de brevets agréé ne peut a) exercer une activité (autrement que le cadre d’une société de personnes) sous un

nom ou une autre dénomination contenant l’expression «agent de brevets» [patent agent] ou «conseil en brevets» [patent attorney] ou,

b) dans le cadre d’une affaire, se présenter ou se laisser présenter d’une autre manière comme étant un «agent de brevets» ou un «conseil en brevets».

2) Une société de personnes ne peut

a) exercer une activité sous un nom ou une autre dénomination contenant l’expression «agent de brevets» ou

«conseil en brevets», ou,

b) dans le cadre d’une affaire, se présenter ou se laisser présenter d’une autre manière comme étant un bureau d’«agents de brevets» ou de «conseils en brevets»

que si tous ses associés sont des agents de brevets agréés ou si elle remplit les conditions qui peuvent être prescrites aux fins du présent article.

3) Une personne morale ne peut

a) exercer une activité (autrement que dans le cadre d’une société de personnes) sous un nom ou une autre dénomination contenant l’expression «agent de brevets» ou «conseil en brevets» ou,

b) dans le cadre d’une affaire, se présenter ou se laisser présenter d’une autre manière comme étant un «agent de brevets» ou un «conseil en brevets»

que si tous ses administrateurs sont des agents de brevets agréés ou si elle remplit les conditions qui peuvent être prescrites aux fins du présent article.

4) L’alinéa 3) ne s’applique pas à une société qui a commencé à exercer son activité comme agent de brevets avant le 17 novembre 1917 si le nom de l’un de ses administrateurs ou de son directeur qui est un agent de brevets agréé figure comme étant ainsi enregistré dans tous avis, circulaires ou lettres professionnels comportant le nom de la société et qui sont émis par la société ou avec son consentement.

5) Lorsque l’usage de l’expression «agent de brevets» ou «conseil en brevets» pour désigner une personne physique, une société de personnes ou une personne morale est contraire aux dispositions du présent article, il en est de même de l’usage, pour désigner une telle personne ou société, son activité ou le siège de son activité, d’autres expressions susceptibles d’être comprises comme indiquant que la personne ou société en question a le droit d’être présentée comme étant un «agent de brevets» ou un «conseil en brevets».

6) La violation des dispositions du présent article constitue un délit dont l’auteur est passible, sur condamnation à la suite d’une procédure en forme simplifiée, d’une amende n’excédant pas le niveau 5 du barème général; les poursuites pour ce délit peuvent être engagées en tout temps dans un délai d’un an à compter de sa commission.

7) Le présent article est applicable sous réserve

a) de l’article 277 (qualité de mandataire en brevets européens, etc.) et b) de l’article 278.1) (usage des expressions «conseil en brevets» et «mandataire en

brevets» pour désigner des avoués).

(Qualité de mandataire en brevets européens, etc.)

277. - 1) Les expressions «mandataire en brevets européens» [European patent attorney] et «agent de brevets européens» [European patent agent] peuvent être utilisées dans les cas suivants sans que cet usage constitue une violation des dispositions de l’article 276.

2) Une personne physique dont le nom figure sur la liste européenne peut

a) exercer une activité sous un nom ou une autre dénomination contenant l’expression «mandataire en brevets européens» ou «agent de brevets européens» ou

b) se présenter ou se laisser présenter d’une autre manière comme étant un «mandataire en brevets européens» ou un «agent de brevets européens».

3) Une société de personnes qui possède le nombre minimal prescrit ou la proportion minimale prescrite de sociétaires dont les noms figurent sur la liste européenne peut

a) exercer une activité sous un nom ou une autre dénomination contenant l’expression «mandataire en brevets européens» ou «agent de brevets européens» ou

b) se présenter ou se laisser présenter d’une autre manière comme étant une entreprise exerçant l’activité de «mandataire en brevets européens» ou d’«agent de brevets européens».

4) Une personne morale qui possède le nombre minimal prescrit ou la proportion minimale prescrite d’administrateurs dont les noms figurent sur la liste européenne peut

a) exercer une activité sous un nom ou une autre dénomination contenant l’expression «mandataire en brevets européens» ou «agent de brevets européens» ou

b) se présenter ou se laisser présenter d’une autre manière comme étant une société qui exerce l’activité de «mandataire en brevets européens» ou d’«agent de brevets européens».

5) Lorsque l’expression «mandataire en brevets européens» ou «agent de brevets européens» peut, conformément au présent article, être utilisée pour désigner une personne physique, une société de personnes ou une personne morale, il est également licite d’utiliser, pour désigner une telle personne ou société, son activité ou le siège de son activité, d’autres expressions susceptibles d’être comprises comme indiquant que la personne ou société en question a le droit d’être présentée comme étant un «mandataire en brevets européens» ou un «agent de brevets européens».

(Usage des expressions «conseil en brevets» et «mandataire en brevets»: dispositions complémentaires)

278. — 1) L’expression «conseil en brevets» peut être utilisée pour désigner un avoué, et une étude d’avoués peut être désignée comme étant un bureau de «conseils en brevets» sans que cet usage constitue une violation des dispositions de l’article 276.

2) Ne constitue pas un délit au sens des actes législatifs limitant l’usage de certaines expressions pour désigner des personnes qui ne sont pas habilitées à agir en qualité d’avoués

a) l’usage de l’expression «conseil en brevets» pour désigner un agent de brevets agréé ou

b) l’usage de l’expression «mandataire en brevets européens» pour désigner une personne dont le nom figure sur la liste européenne.

3) Les actes législatifs visés à l’alinéa 2) sont l’article 21 de la Loi de 1974 sur les avoués [Solicitors Act 1974], l’article 31 de la Loi de 1980 sur les avoués (Ecosse) [Solicitors (Scotland) Act 1980] et l’article 22 de l’Ordonnance de 1976 sur les avoués (Irlande du Nord) [Solicitors (Northern Ireland) Order 1976].

(Pouvoir de prescrire les conditions, etc., que doivent remplir les sociétés de personnes et les personnes morales comprenant des associés habilités et des associés non habilités)

279. — 1) Le ministre peut édicter des dispositions réglementaires a) prescrivant les conditions que doivent remplir aux fins de l’article 276(qualité

d’agent de brevets) les sociétés de personnes dont les associés ne sont pas tous des personnes habilitées ou les personnes morales dont les administrateurs ne sont pas tous des personnes habilitées et

b) imposant d’autres conditions que ces sociétés de personnes et personnes morales doivent remplir.

2) Les dispositions réglementaires peuvent, notamment,

a) prescrire des conditions relatives au nombre ou à la proportion des associés ou administrateurs qui doivent être des personnes habilitées;

b) imposer des conditions relatives i) à l’identification des personnes habilitées et non habilitées dans les avis,

circulaires ou lettres professionnels émis par la société de personnes ou la personne morale, ou avec son consentement, et qui se rapportent à celle-ci ou à son activité; et

ii) à la manière dont une société de personnes ou une personne morale doit organiser ses affaires afin que les personnes habilitées exercent un degré suffisant de contrôle sur les activités des personnes non habilitées.

3) La violation d’une condition imposée par les dispositions réglementaires constitue un délit dont l’auteur est passible, sur condamnation à la suite d’une procédure en forme simplifiée, d’une amende n’excédant pas le niveau 5 du barème général.

4) Le ministre peut édicter des dispositions réglementaires prescrivant, aux fins de l’article 277, le nombre ou la proportion des associés d’une société de personnes ou des administrateurs d’une personne morale qui doivent être des personnes habilitées pour que cette société de personnes ou cette personne morale puisse se prévaloir des dispositions dudit article.

5) Dans le présent article, «personne habilitée» s’entend,

a) aux alinéas 1) et 2), d’une personne qui est un agent de brevets agréé et, b) à l’alinéa 4), d’une personne dont le nom figure sur la liste européenne. 6) Les dispositions réglementaires édictées en application du présent article sont

susceptibles d’annulation conformément à une résolution de l’une ou l’autre des Chambres du Parlement.

(Exemption de l’obligation de divulgation pour les communications avec des agents de brevets)

280. — 1) Le présent article s’applique aux communications, quelles qu’elles soient, se rapportant à la protection des inventions, dessins ou modèles, informations techniques, marques de produits ou de services ou à toute question concernant un passing off2.

2) Toute communication de ce genre

a) entre une personne et son agent de brevets ou b) visant à obtenir des informations ou en réponse à une demande d’informations

qu’une personne cherche à obtenir pour donner des instructions à son agent de brevets

est exemptée de l’obligation de divulgation dans les procédures judiciaires se déroulant en Angleterre, au pays de Galles ou en Irlande du Nord de la même manière que le sont les communications entre une personne et son avoué ou, selon le cas, les communications visant à obtenir des informations ou en réponse à une demande d’informations qu’une personne cherche à obtenir pour donner des instructions à son avoué.

3) A l’alinéa 2), «agent de brevets» s’entend

a) d’un agent de brevets agréé ou d’une personne dont le nom figure sur la liste européenne,

b) d’une société de personnes habilitée à se présenter comme étant un bureau d’agents de brevets ou une entreprise exerçant l’activité de mandataire en brevets européens ou

c) d’une personne morale habilitée à se présenter comme étant un agent de brevets ou une société exerçant l’activité de mandataire en brevets européens.

4) Il est expressément déclaré par la présente disposition que les dispositions légales conférant une exemption de l’obligation de divulguer des communications dans les procédures judiciaires en Ecosse s’étendent aux communications mentionnées dans le présent article.

(Pouvoir du contrôleur de refuser de traiter avec certains agents)

281. — 1) Le présent article s’applique aux affaires régies par la Loi de 1949 sur les brevets, la Loi de 1949 sur les dessins et modèles enregistrés3 et la Loi de 1977 sur les brevets4.

2 Les éléments essentiels de l'action en passing off sont: 1) une allégation fausse, 2) faite par un négociant dans le cours d'une activité commerciale. 3) à l'intention de ses clients éventuels ou des consommateurs finals de produits ou de services fournis par lui. 4) conçue pour être dommageable à l'affaire d'un autre négociant (en ce sens qu'il s'agit d'une conséquence raisonnablement prévisible) et 5) qui cause un préjudice réel à l'affaire du négociant par lequel l'action est intentée, ou qui (dans le cas d'une action préventive) aura probablement cet effet (N.d.l.r.) 3 Voir les Lois et traités de propriété industrielle, ROYAUME-UNI — Texte 4-002. 4 Ibid., Texte 2-001.

2) Le ministre peut édicter des dispositions réglementaires autorisant le contrôleur à refuser de reconnaître la qualité d’agent, pour toute affaire à laquelle le présent article s’applique,

a) à une personne morale ou physique qui a été condamnée pour un délit visé à l’article 88 de la Loi de 1949 sur les brevets, à l’article 114 de la Loi de 1977 sur les brevets ou à l’article276 de la présente loi;

b) à une personne physique dont le nom a été radié du registre des agents de brevets et n’y a pas été réinscrit, ou qui est suspendue de ses fonctions d’agent de brevets, pour motif de faute professionnelle [misconduct];

c) à une personne morale dont le ministre constate qu’elle s’est rendue coupable d’une conduite qui, s’il s’agissait d’une personne physique inscrite au registre des agents de brevets, aurait rendu celle-ci passible d’une radiation du registre pour motif de faute professionnelle;

d) à une société de personnes ou à une personne morale dont un des associés ou administrateurs est une personne à laquelle le contrôleur pourrait refuser de reconnaître la qualité d’agent en vertu du sous-alinéa a), b) ou c) ci-dessus.

3) Les dispositions réglementaires peuvent comporter les dispositions accessoires et complémentaires que le ministre estime appropriées et, notamment, prescrire les circonstances dans lesquelles une personne est ou n’est pas réputée s’être rendue coupable de faute professionnelle.

4) Les dispositions réglementaires édictées en application du présent article sont susceptibles d’annulation conformément à une résolution de l’une ou l’autre des Chambres du Parlement.

5) Le contrôleur refuse de reconnaître la qualité d’agent, dans toute affaire à laquelle le présent article s’applique, à une personne qui n’a pas de domicile ou d’établissement au Royaume-Uni, dans l’île de Man ou dans un autre Etat membre de la Communauté économique européenne.

Agents de marques

(Registre des agents de marques)

282. — 1) Le ministre peut édicter des dispositions réglementaires exigeant la tenue d’un registre des personnes qui agissent en qualité de mandataires aux fins de déposer des demandes d’enregistrement de marques ou d’obtenir l’enregistrement de marques; dans la présente partie, «agent de marques agréé» [registered trade mark agent] s’entend d’une personne dont le nom est inscrit au registre tenu en vertu du présent article.

2) Les dispositions réglementaires peuvent comporter toute disposition que le ministre estime appropriée pour réglementer l’inscription de personnes et, notamment,

a) exiger le paiement des taxes qui peuvent être prescrites et

b) autoriser, dans les cas prescrits, la radiation du nom d’une personne inscrite au registre des agents de marques ou la suspension des effets de son inscription.

3) Les dispositions réglementaires peuvent déléguer la tenue du registre à une autre personne en conférant à celle-ci

a) le pouvoir d’édicter des règles i) relatives au paiement de taxes, dans les cas et sous réserve des limites

prescrits par les dispositions réglementaires et

ii) relatives à toute autre question susceptible de faire l’objet de dispositions réglementaires, ainsi que

b) d’autres fonctions, y compris des fonctions disciplinaires, qui peuvent être prescrites par voie de dispositions réglementaires.

4) Les dispositions réglementaires édictées en application du présent article sont susceptibles d’annulation conformément à une résolution de l’une ou l’autre des Chambres du Parlement.

(Interdiction de présenter des personnes non inscrites au registre comme étant des agents de marques agréés)

283.— 1) Une personne physique qui n’est pas un agent de marques agréé ne peut a) exercer une activité (autrement que dans le cadre d’une société de personnes)

sous un nom ou une autre dénomination contenant l’expression «agent de marques agréé» ou,

b) dans le cadre d’une affaire, se présenter d’une autre manière comme étant un «agent de marques agréé» ou se faire passer pour telle, ou permettre qu’on la présente ou fasse passer pour telle.

2) Une société de personnes ne peut

a) exercer une activité sous un nom ou une autre dénomination contenant l’expression «agent de marques agréé» ou,

b) dans le cadre d’une affaire, se présenter d’une autre manière comme étant un bureau d’«agents de marques agréés» ou se faire passer pour telle, ou permettre qu’on la présente ou fasse passer pour telle qui si tous ses associés sont des agents de marques agréés ou si elle remplit les conditions qui peuvent être prescrites aux fins du présent article.

3) Une personne morale ne peut

a) exercer une activité (autrement que dans le cadre d’une société de personnes) sous un nom ou une autre dénomination contenant l’expression «agent de marques agréé» ou,

que si tous ses administrateurs sont des agents de marques agréés ou si elle remplit les conditions qui peuvent être prescrites aux fins du présent article.

4) Le ministre peut édicter des dispositions réglementaires prescrivant les conditions que doit remplir, aux fins du présent article, une société de personnes dont les associés ne sont pas tous des agents de marques agréés ou une personne morale dont les administrateurs ne sont pas tous des agents de marques agréés; les dispositions réglementaires peuvent prescrire, notamment, des conditions relatives au nombre ou à la proportion des associés ou des administrateurs qui doivent être des agents de marques agréés.

5) Les dispositions réglementaires édictées en application du présent article sont susceptibles d’annulation conformément à une résolution de l’une ou l’autre des Chambres du Parlement.

(Exemption de l’obligation de divulgation pour les communications avec des agents de marques agréés)

284. — 1) Le présent article s’applique aux communications, quelles qu’elles soient, se rapportant à la protection des dessins ou modèles, marques de produits ou de services ou à toute question concernant un passing off5.

2) Toute communication de ce genre

a) entre une personne et son agent de marques ou b) visant à obtenir des informations ou en réponse à une demande d’informations

qu’une personne cherche à obtenir pour donner des instructions à son agent de marques

3) A l’alinéa 1), «agent de marques» s’entend

a) d’un agent de marques agréé ou b) d’une société de personnes habilité à se présenter comme étant un bureau

d’agents de marques agréés ou

c) d’une personne morale habilitée à se présenter comme étant un agent de marques agréé.

4) Il est expressément déclaré par la présente disposition que les dispositions légales conférant une exemption de l’obligation de divulguer des communications dans

5 Voir la note 2 ci-dessus.

les procédures judiciaires en Ecosse s’étendent aux communications mentionnées à l’alinéa 1).

Dispositions complémentaires

(Délits commis par des sociétés de personnes et des personnes morales)

285. — 1) Les poursuites pour des délits visés par la présente partie dont il est allégué qu’ils ont été commis par une société de personnes doivent être engagées contre la société de personnes et non contre ses associés, sans préjudice toutefois de la responsabilité personnelle qui incombe à ces derniers en vertu de l’alinéa 4) ci-après.

2) Les dispositions suivantes s’appliquent aux fins de telles procédures en ce qui concerne une personne morale:

a) tous les règlements de tribunaux se rapportant à la signification de pièces; b) en Angleterre, au pays de Galles ou en Irlande du Nord, l’annexe 3 de la Loi de

1980 sur les tribunaux d’instance [Magistrates’ Courts Act 1980] ou l’annexe 4 de l’Ordonnance de 1981 sur les tribunaux d’instance (Irlande du Nord) [Magistrates’ Courts (Northern Ireland) Order 1981] (procédure d’inculpation).

3) Une amende infligée à une société de personnes après sa condamnation dans une telle procédure doit être acquittée par prélèvement sur les actifs de ladite société.

4) Lorsqu’une société de personnes est coupable d’un délit visé dans la présente partie, chaque associé est aussi coupable du délit et passible de poursuites et des sanctions correspondantes, hormis

celui ou ceux dont il est prouvé qu’ils ont ignoré la commission du délit ou tenté de l’empêcher.

5) Lorsqu’il est prouvé qu’un délit visé dans la présente partie a été commis par une personne morale avec le consentement ou la complicité d’un directeur, administrateur, secrétaire ou autre employé exerçant une fonction analogue, ou d’une personne qui prétendait agir à l’un de ces titres, la personne en question est coupable du délit au même titre que la personne morale et est passible de poursuites et des sanctions correspondantes.

(Interprétation)

286. Dans la présente partie, «contrôleur» s’entend du contrôleur général des brevets, des dessins et modèles et

des marques [Comptroller-General of Patents, Designs and Trade Marks]; «administrateur» s’entend, en ce qui concerne une personne morale dont les affaires

sont gérées par ses membres, d’un membre de la personne morale;

«liste européenne» s’entend de la liste des mandataires agréés tenue par l’Office européen des brevets conformément à la Convention sur le brevet européen;

«agent de brevets agréé» a le sens qui lui est donné à l’article275.1) ;

«agent de marques agréé» a le sens qui lui est donné à l’article282.1) .

VIe PARTIE BREVETS

Tribunaux des brevets de comté

(Tribunaux des brevets de comté: compétence spéciale)

287.—1) Le Grand Chancelier (ministre de la justice) [Lord Chancellor] peut, par ordonnance édictée par voie de dispositions réglementaires, désigner tout tribunal de comté en tant que tribunal des brevets de comté [patents county court] et lui conférer la compétence («juridiction spéciale») d’examiner et de juger les affaires

a) se rapportant à des brevets ou à des dessins et modèles ou b) accessoires ou subordonnées à des affaires se rapportant à des brevets ou à des

dessins et modèles qui peuvent être indiquées dans l’ordonnance.

2) La compétence spéciale d’un tribunal des brevets de comté peut être exercée sur l’ensemble du territoire de l’Angleterre et du pays de Galles, mais un règlement de tribunal peut prévoir que l’examen et le jugement d’une affaire en instance devant l’un de ces tribunaux soient transférés à un autre de ces tribunaux ou que l’examen et le jugement d’une telle affaire soient soumis en partie au premier de ces tribunaux et en partie à un autre de ces tribunaux.

3) Un tribunal des brevets de comté peut être saisi dans le cadre de sa compétence spéciale même si aucune réparation pécuniaire n’est demandée.

4) Une ordonnance édictée en vertu du présent article et aux termes de laquelle la compétence spéciale d’un tribunal des brevets de comté est retirée peut comporter des dispositions relatives à des affaires en instance devant ce tribunal au moment où l’ordonnance prend effet.

5) Les dispositions du présent article ne doivent pas être interprétées comme portant préjudice à la compétence ordinaire d’un tribunal de comté.

(Limitation du montant de la valeur litigieuse dans les affaires relevant de la compétence spéciale des tribunaux des brevets de comté)

288.—1) Sa. Majesté peut, par ordonnance en Conseil, fixer des limites au montant en cause ou à la valeur litigieuse pour toute catégorie d’affaires relevant de la compétence spéciale des tribunaux des brevets de comté.

2) Lorsqu’il a un juste motif pour réclamer un montant supérieur à celui qui a été fixé pour une catégorie de réclamations, le demandeur peut renoncer à l’excédent, auquel cas le tribunal des brevets de comté est compétent pour examiner et juger l’action, mais le demandeur ne peut pas recouvrer un montant supérieur.

3) Lorsque le tribunal est compétent pour examiner et juger une action en vertu de l’alinéa 2), sa décision en l’espèce est réputée exhaustive en ce qui concerne toutes

réclamations se rapportant au motif de l’action et il en est fait état dans les minutes du tribunal.

4) Lorsque les parties ont convenu, par un mémorandum signé par elles ou leurs avoués ou autres mandataires, de reconnaître la compétence d’un tribunal pour examiner et juger une affaire,

ledit tribunal est ainsi compétent nonobstant toute limite fixée en vertu du présent article.

5) Une recommandation d’édicter une ordonnance en vertu du présent article ne peut être présentée à Sa Majesté que si le projet en a été soumis à l’une et à l’autre des Chambres du Parlement et approuvé par une résolution de chacune d’elles.

(Renvoi d’affaires entre la Haute Cour et les tribunaux des brevets de comté)

289.—1) Il n’est pas rendu d’ordonnance en vertu de l’article 41 de la Loi de 1984 sur les tribunaux de comtés [County Courts Act 1984] (compétence de la Haute Cour [High Court] d’ordonner qu’une procédure engagée devant un tribunal de comté lui soit renvoyée) en ce qui concerne des affaires relevant de la compétence spéciale des tribunaux des brevets de comté.

2) Dans le cadre d’une affaire relevant de la compétence spéciale d’un tribunal des brevets de comté, le tribunal doit tenir compte de la situation financière des parties pour se prononcer sur la question de savoir s’il y a lieu d’édicter une ordonnance en vertu de l’article 40 ou 42 de la Loi de 1984 sur les tribunaux de comtés (renvoi de la procédure par la Haute Cour ou devant celle-ci) et peut ordonner le renvoi de la procédure devant un tribunal des brevets de comté ou, selon le cas, s’abstenir d’en ordonner le renvoi devant la Haute Cour, nonobstant le fait que la procédure soit susceptible de soulever une question de fait ou de droit importante.

(Limitation du montant des frais de représentation lorsqu’une demande de réparation pécuniaire aurait pu être portée devant un tribunal des brevets de comté)

290.—1) Lorsque, dans une action comportant une demande de réparation pécuniaire qui est intentée devant la Haute Cour qu’elle aurait pu l’être devant un tribunal des brevets de comté, sous réserve des dispositions du présent article, le demandeur recouvre un montant inférieur au montant prescrit, il n’a pas le droit de recouvrer pour les frais de représentation un montant supérieur à celui auquel il aurait eu droit si l’action avait été portée devant un tribunal de comté.

2) A cette fin, le demandeur est réputé avoir recouvré la totalité du montant recouvrable au titre de sa demande, indépendamment de toute déduction éventuelle faite en ce qui concerne des questions qu’il n’y a pas lieu de prendre en considération pour déterminer si l’action aurait pu être intentée devant un tribunal des brevets de comté.

3) Le présent article n’a pas d’incidence sur une question relative aux frais de représentation lorsque la Haute Cour estime qu’il y avait un motif suffisant de supposer

que le montant recouvrable au titre de la réclamation du demandeur serait supérieur au montant prescrit.

Si elle est convaincue qu’il y avait un motif suffisant d’intenter l’action devant elle, la Haute Cour peut, par ordonnance, allouer la totalité ou une partie des frais de représentation, conformément au barème de la Haute Cour ou au barème du tribunal des brevets de comté qu’elle désigne.

5) Le présent article ne s’applique pas aux procédures engagées par la Couronne.

6) Dans le présent article, «le montant prescrit» s’entend du montant qui peut être prescrit par Sa Majesté aux fins du présent article par voie d’ordonnance en Conseil.

7) Une recommandation d’édicter une ordonnance en vertu du présent article ne peut être présentée à Sa Majesté que si le projet en a été soumis à l’une et à l’autre des Chambres du Parlement et approuvé par une résolution de chacune d’elles.

(Procédure devant un tribunal des brevets de comté)

291.—1) Lorsqu’un tribunal de comté a été désigné comme étant un tribunal des brevets de comté, le Grand Chancelier nomme une personne habilitée à y siéger en qualité de juge des affaires de brevets.

2) Les règlements des tribunaux de comtés doivent comporter des dispositions pour assurer, dans la mesure où cela est possible et approprié,

a) que les procédures relevant de la compétence spéciale des tribunaux des brevets de comté soient traitées par le juge des affaires de brevets et

b) que le juge, et non un greffier ou autre fonctionnaire du tribunal, traite des questions incidentes à ces procédures.

3) Les règlements des tribunaux de comté doivent comporter des dispositions habilitant les tribunaux des brevets de comté, dans les procédures relevant de leur compétence spéciale, sur ou sans requête d’une partie,

a) à nommer des conseillers scientifiques ou assesseurs pour assister le tribunal ou b) à ordonner à l’Office des brevets de procéder à des enquêtes sur des questions de

fait ou d’opinion et de présenter un rapport à ce sujet.

4) Lorsqu’un tribunal exerce l’un ou l’autre de ces pouvoirs sur requête d’une partie, le montant de la rémunération ou des taxes payables à l’Office des brevets peut être fixé conformément au règlement dudit tribunal et constituent des frais et dépens de procédure, à moins que le juge n’en ordonne autrement.

5) Lorsqu’un tribunal exerce l’un ou l’autre de ces pouvoirs de sa propre initiative, le montant de la rémunération ou des taxes payables à l’Office des brevets peut être fixé par le Grand Chancelier avec l’approbation du Trésor et est prélevé sur des crédits votés par le Parlement.

(Droits et obligations des agents de brevets agréés en ce qui concerne des affaires se déroulant devant les tribunaux des brevets de comté)

292.—1) Dans le cadre d’une affaire relevant de la compétence spéciale d’un tribunal des brevets de comté ou en relation avec une telle affaire, un agent de brevets agréé peut accomplir tout acte qu’un avoué près la Cour suprême peut accomplir, à l’exception de la rédaction d’actes authentiques.

2) Le Grand Chancelier peut, par voie de dispositions réglementaires, subordonner le droit conféré par l’alinéa 1) aux conditions et limitations qu’il estime nécessaires ou opportunes; des dispositions différentes peuvent être édictées pour des catégories différentes d’affaires.

3) Un tribunal des brevets de comté a le même pouvoir de faire procéder à l’exécution forcée d’un engagement pris par un agent de brevets agréé agissant en vertu du présent article que celui qui lui est conféré en vertu de l’article 142 de la Loi de 1984 sur les tribunaux de comté à l’égard d’un avoué.

4) Les dispositions de l’article 143 de la Loi de 1984 sur les tribunaux de comté (interdiction aux personnes autres que des avoués de recevoir des honoraires) ne s’appliquent pas aux agents de brevets agréés agissant en vertu du présent article.

5) Les dispositions des règlements des tribunaux des brevets de comté prescrivant des barèmes d’honoraires pour les avoués s’appliquent aux agents de brevets agréés agissant en vertu du présent article.

6) Les dispositions réglementaires édictées en application du présent article sont susceptibles d’annulation conformément à une résolution de l’une ou l’autre des Chambres du Parlement.

Licences de plein droit en ce qui concerne certains brevets

(Limitation à l’accomplissement d’actes autorisés en vertu de certaines licences)

293.6

(Date à laquelle une requête en fixation des conditions d’une licence peut être présentée)

294.7

Brevets: modifications diverses

(Brevets: modifications diverses)

295.8

6 Modification de la Loi de 1977 sur les brevets: voir les Lois et traités de propriété industrielle, ROYAUME-UNI — Texte 2-001. 7 Adjonction à la Loi de 1977 sur les brevets, ibid. 8 Modifications de la Loi de 1977 sur les brevets, ibid.

SOMMAIRE

…*

SEPTIÈME PARTIE — DISPOSITIONS DIVERSES ET GÉNÉRALES

Article Dispositifs visant à contourner la protection contre la copie ou la reproduction

296. Dispositifs visant à contourner la protection contre la copie ou la reproduction

Réception frauduleuse de transmissions

297. Délit constitué par la réception frauduleuse de programmes

298. Droits et moyens de recours en ce qui concerne l’appareil, etc. utilisé pour la réception non autorisée de transmissions

299. Dispositions supplémentaires en ce qui concerne la réception frauduleuse

Application ou utilisation frauduleuse d’une marque

300. L’application ou l’utilisation frauduleuse d’une marque constitue un délit

Dispositions en faveur de l’Hôpital des enfants malades

301. Dispositions en faveur de l’Hôpital des enfants malades

Aide financière à certains organismes internationaux

302. Aide financière à certains organismes internationaux

Dispositions générales

303. Modifications et abrogations découlant de la présente partie

304. Portée

305. Entrée en vigueur

306. Titre abrégé

ANNEXES

* Les parties concernant les dessins et modèles et les brevets sont publiées dans La Propriété industrielle, encarts Lois et traités.

Annexe 1. Droit d’auteur: dispositions transitoires et clauses de sauvegarde

Annexe 2. Droits afférents aux prestations: actes autorisés …

Annexe 6. Dispositions en faveur de l’Hôpital des enfants malades

Annexe 7. Modifications consécutives à la loi: généralités …

…*

SEPTIÈME PARTIE DISPOSITIONS DIVERSES ET GÉNÉRALES

Dispositifs visant à contourner la protection contre la copie ou la reproduction

Dispositifs visant à contourner la protection contre la copie ou la reproduction

296. 1) Le présent article est applicable lorsque des copies ou des exemplaires d’une oeuvre protégée par un droit d’auteur sont diffusés dans le public, par le titulaire du droit d’auteur ou avec son autorisation, sous une forme électronique qui est protégée contre la copie ou la reproduction.

2) La personne qui diffuse les copies ou exemplaires dans le public a les mêmes droits à l’égard d’une personne qui, tout en sachant ou en ayant des raisons de penser qu’il sera utilisé pour faire des copies ou des exemplaires contrefaits.

a) fabrique, importe, vend ou loue, ou propose ou présente en vue de la vente ou de la location, ou fait connaître par la publicité en vue de la vente ou de la location, tout dispositif ou moyen conçu pour contourner la forme de protection employée contre la copie ou la reproduction ou spécialement adaptée à cet effet, ou

b) publie des informations visant à permettre ou à aider des personnes à contourner ladite forme de protection contre la copie ou la reproduction,

* Les parties concernant les dessins et modèles et les brevets sont publiées dans La Propriété industrielle, encarts Lois et traités.

que le titulaire d’un droit d’auteur en cas d’atteinte au droit d’auteur.

3) En outre, elle a les mêmes droits en vertu de l’article 99 ou 100 (remise ou saisie de certains objets) en ce qui concerne tout dispositif ou moyen de ce genre qu’une personne a en sa possession, sous sa garde ou sous sa surveillance avec l’intention de l’utiliser pour faire des copies ou des exemplaires contrefaits d’œuvres protégées par un droit d’auteur, que le titulaire d’un droit d’auteur en ce qui concerne une copie ou un exemplaire contrefait.

4) Dans le présent article, les mentions de la protection contre la copie ou la reproduction visent aussi tout dispositif ou moyen destiné à empêcher ou à limiter la copie ou la reproduction d’une oeuvre ou à altérer la qualité des copies ou des exemplaires réalisés.

5) Les expressions utilisées dans le présent article qui sont définies aux fins de la première partie de la présente loi (droit d’auteur) ont le même sens que dans ladite partie.

6) Les dispositions ci-après sont applicables aux procédures engagées en vertu du présent article comme aux procédures engagées en vertu de la première partie (droit d’auteur)

a) les articles 104 à 106 de la présente loi (présomptions en ce qui concerne certaines questions relatives au droit d’auteur), et

b) l’article 72 de la loi de 1981 sur la Cour suprême (Supreme Court Act 1981), l’article 15 de la loi de 1985 sur la révision de la législation (dispositions diverses) (Ecosse) (Law Reform (Miscellaneous Provisions) (Scotland) Act 1985) et l’article 94A de la loi de 1978 sur l’administration de la justice (Irlande du Nord) (Judicature (Northern Ireland) Act 1978) (retrait du droit de ne pas témoigner lorsque le témoignage peut être préjudiciable à son auteur, dans certaines procédures touchant à la propriété intellectuelle);

en outre, l’article 114 de la présente loi est applicable, compte tenu des modifications nécessaires, en ce qui concerne l’affectation de tout objet remis ou saisi en vertu de l’alinéa 3) ci-dessus.

Réception frauduleuse de transmissions

Délit constitué par la réception frauduleuse de programmes

297. 1) Quiconque reçoit de façon illicite un programme compris dans un service de radiodiffusion ou de câblodistribution assuré à partir d’un lieu situé au Royaume-Uni dans l’intention d’éviter de payer toute redevance applicable à la réception du programme se rend coupable d’un délit et est possible après condamnation en procédure simplifiée d’une amende à concurrence du degré 5 du barème général.

2) Lorsqu’il est prouvé qu’un délit réprimé en vertu du présent article a été commis par une personne morale avec l’autorisation ou la complicité d’un directeur, d’un administrateur, d’un secrétaire ou d’un autre dirigeant, ou d’une personne prétendant agir à ce titre, l’intéressé et la personne morale sont l’un et l’autre coupables du délit et passibles de poursuites et des sanctions correspondantes.

Dans le cas d’une personne morale dont les activités sont gérées par ses membres, on entend par “directeur” un membre de la personne morale.

Droits et moyens de recours en ce qui concerne l’appareil, etc. utilisé pour la réception non autorisée de transmissions

298. 1) Toute personne qui a) perçoit des redevances pour la réception de programmes compris dans un

service de radiodiffusion ou de câblodistribution assuré à partir d’un lieu situé au Royaume-Uni, ou

b) envoie des transmissions codées de tout autre type à partir d’un lieu situé au Royaume-Uni,

est admise au bénéfice des droits et moyens de recours ci-dessous.

2) Elle a les mêmes droits et moyens de recours contre une personne qui

a) fabrique, importe ou vend ou loue tout appareil ou dispositif conçu pour permettre à des personnes de recevoir les programmes ou toutes autres transmissions lorsqu’elles n’ont pas le droit de le faire ou pour les aider à le faire, ou tout appareil ou dispositif spécialement adapté à cet effet, ou

b) publie toute information conçue pour permettre à des personnes de recevoir les programmes ou toutes autres transmissions lorsqu’elles n’ont pas le droit de le faire ou pour les aider à le faire,

que le titulaire d’un droit d’auteur en cas d’atteinte au droit d’auteur.

3) En outre, elle a les mêmes droits en vertu de l’article99 ou 100 (remise ou saisie de certains objets) en ce qui concerne tout appareil ou dispositif de ce genre que le titulaire d’un droit d’auteur en ce qui concerne une copie ou un exemplaire contrefait.

4) L’article 72 de la loi de 1981 sur la Cour suprême (Supreme Court Act 1981), l’article 15 de la loi de 1985 sur la révision de la législation (dispositions diverses) (Ecosse) (Law Reform (Miscellaneous Provisions) (Scotland) Act 1985) et l’article 94A de la loi de 1978 sur l’administration de la justice (Irlande du Nord) (Judicature (Northern Ireland) Act 1978) (retrait du droit de ne pas témoigner lorsque le témoignage peut être préjudiciable à son auteur, dans certaines procédures touchant à la propriété intellectuelle) sont applicables aux procédures engagées en vertu du présent article comme aux procédures engagées en vertu de la première partie de la présente loi (droit d’auteur).

5) Dans l’article 97.1) (actes commis de bonne foi portant atteinte au droit d’auteur), dans la mesure où il s’applique aux procédures engagées pour atteinte aux droits conférés par le présent article, la mention du cas où le défendeur ignorait ou n’avait aucune raison de penser que l’oeuvre en cause était protégée par le droit d’auteur doit être interprétée comme visant le cas où le défendeur ignorait ou n’avait aucune raison de penser que ses actes portaient atteinte aux droits conférés par le présent article.

6) L’article 114 de la présente loi est applicable, compte tenu des modifications nécessaires, en ce qui concerne l’affectation de tout objet remis ou saisi en vertu de l’alinéa 3) ci-dessus.

Dispositions supplémentaires en ce qui concerne la réception frauduleuse

299. 1) Sa Majesté peut, par ordonnance en Conseil, a) prévoir que l’article 297 est applicable en ce qui concerne des programmes

compris dans des services assurés à partir d’un pays ou d’un territoire autre que le Royaume-Uni, et

b) prévoir que l’article298 est applicable en ce qui concerne des programmes de ce genre et des transmissions codées envoyées à partir d’un tel pays ou territoire.

2) Aucune ordonnance de ce genre n’est édictée à moins qu’il n’apparaisse à Sa Majesté que des dispositions ont été ou seront prises dans le cadre de la législation de ce pays ou territoire en vue de protéger de façon appropriée les personnes percevant des redevances pour des programmes compris dans des services de radiodiffusion ou de câblodistribution assurés à partir du Royaume-Uni ou, selon le cas, pour des transmissions codées envoyées à partir du Royaume-Uni.

3) Les ordonnances en Conseil prévues aux termes de l’alinéa 1) sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

4) Lorsque les articles 297 et 298 sont applicables en ce qui concerne un service de radiodiffusion ou un service de câblodistribution, ils sont aussi applicables à tout service géré pour la personne qui assure ledit service, ou une personne fournissant des programmes pour ledit service, qui consiste entièrement ou principalement en l’envoi au moyen d’un système de télécommunication de sons ou d’images visuelles, ou des deux à la fois.

5) Dans les articles 297 et 298, et dans le présent article, les termes “programme”, “radiodiffusion” et “service de câblodistribution”, et les expressions connexes, ont le même sens que dans la première partie (droit d’auteur).

Application ou utilisation frauduleuse d’une marque

L’application ou l’utilisation frauduleuse d’une marque constitue un délit

300. Les articles ci-après sont insérés dans la loi sur les marques de 1938 avant l’article 59, après le titre “Délits et limitation de l’usage des armoiries royales”.

“L’application ou l’utilisation frauduleuse d’une marque constitue un délit

58A.— 1) Sous réserve de l’alinéa 3) ci-après, commet un délit toute personne qui

a) applique une marque identique ou semblable à une marque enregistrée à des produits ou à des éléments utilisés ou destinés à être utilisés pour l’étiquetage, l’emballage ou la publicité de produits, ou

b)vend, loue, ou propose ou présente en vue de la vente ou de la location, ou diffuse

i) des produits portant une marque de ce genre, ou

ii) des éléments portant une marque de ce genre qui sont utilisés ou destinés à être utilisés pour l’étiquetage, l’emballage ou la publicité de produits, ou

c) utilise des éléments portant une marque de ce genre dans la pratique des affaires aux fins de l’étiquetage, de l’emballage ou de la publicité de produits, ou

d) a en sa possession dans la pratique des affaires des produits ou des éléments portant une marque de ce genre en vue d’accomplir l’un quelconque des actes mentionnés aux sous-alinéas a) à c),

lorsqu’elle n’a pas le droit d’utiliser la marque en ce qui concerne les produits en question et que les produits n’ont aucun lien dans la pratique des affaires avec une personne qui a le droit de le faire.

2) Commet aussi un délit, sous réserve de l’alinéa 3) ci-dessous, toute personne qui a en sa possession dans la pratique des affaires des produits ou des éléments portant une marque identique ou semblable à une marque enregistrée en vue de permettre à une autre personne d’accomplir l’un quelconque des actes mentionnés à l’alinéa 1)a)à c) ou de l’aider à le faire, tout en sachant ou en ayant des raisons de penser que l’autre personne n’a pas le droit d’utiliser la marque en ce qui concerne les produits en question et que les produits n’ont aucun lien dans la pratique des affaires avec une personne qui a le droit de le faire.

3) Pour qu’une personne se rende coupable d’un délit en vertu de l’alinéa 1) ou 2), il suffit

a) qu’elle agisse dans un but lucratif pour elle-même ou une autre personne, ou dans l’intention de causer une perte à une autre personne, et

b) qu’elle ait l’intention de faire accepter les produits en question comme ayant un lien dans la pratique des affaires avec une personne ayant le droit d’utiliser la marque en question;

et une personne incriminée en vertu de l’alinéa I) peut montrer pour se défendre qu’elle avait des motifs raisonnables de penser qu’elle avait le droit d’utiliser la marque en ce qui concerne les produits en question.

4) Une personne coupable d’un délit en vertu du présent article est passible

b) après condamnation à la suite d’une inculpation, d’une amende ou d’un emprisonnement d’une durée de 10 ans au plus, ou de ces deux peines conjointement.

5) Lorsqu’il est prouvé qu’un délit réprimé en vertu du présent article a été commis par une personne morale avec l’autorisation ou la complicité d’un directeur, d’un administrateur, d’un secrétaire ou d’un autre dirigeant, ou d’une personne prétendant agir à ce titre, l’intéressé et la personne morale sont l’un et l’autre coupables du délit et passibles de poursuites et des sanctions correspondantes.

Dans le cas d’une personne morale dont les activités sont gérées par ses membres, on entend par ‘directeur’ un membre de la personne morale.

6) Dans le présent article, le mot ‘affaires’ s’entend d’une activité commerciale ou non commerciale.

Remise de produits et d’éléments faisant l’objet du délit

58B.— 1) Le tribunal qui condamne une personne pour un délit réprimé en vertu de l’article 58A, s’il acquiert la conviction qu’au moment où elle a été arrêtée ou incriminée cette personne avait en sa possession, sous sa garde ou sous sa surveillance

a) des produits ou des éléments ayant fait l’objet du délit, ou b) des produits analogues à ceux ayant fait l’objet du délit, ou des

éléments semblables à ceux ayant fait l’objet du délit, portant une marque identique ou semblable à celle par rapport à laquelle le délit a été commis,

ordonne que les produits ou les éléments soient remis à la personne qu’il peut désigner.

2) A cette fin, une personne est considérée comme incriminée

a) en Angleterre, au pays de Galles et en Irlande du Nord, lorsqu’elle est incriminée verbalement ou fait l’objet d’une signification ou d’une inculpation;

b) en Ecosse, lorsqu’elle fait l’objet d’une mise en garde, d’une incrimination, d’une plainte ou d’une inculpation.

3) Le tribunal peut rendre une ordonnance de sa propre initiative ou sur la demande du ministère public (prosecutor) (en Ecosse, Lord Advocate ou procurator-fiscal), mais ne rend pas d’ordonnance s’il lui apparaît improbable qu’une ordonnance soit rendue en vertu de l’article 58C (ordonnance relative à l’affectation de produits ou d’éléments faisant l’objet du délit).

4) Toute ordonnance rendue en vertu du présent article par un tribunal répressif inférieur (magistrates’ court) est susceptible de recours,

a) en Angleterre et au pays de Galles, devant la juridiction répressive supérieure (Crown Court), et

b) en Irlande du Nord, devant le county court; en outre, en Ecosse, lorsqu’une ordonnance a été rendue en vertu du présent article, la personne à laquelle ont été retirés les produits ou les éléments qui étaient en sa possession, sous sa garde ou sous sa surveillance peut, sans préjudice de toute autre voie de recours légale, faire appel de cette ordonnance dans les mêmes conditions que s’il s’agissait d’une condamnation.

5) Toute personne à laquelle sont remis des produits ou des éléments en application d’une ordonnance rendue en vertu du présent article les conserve en attendant que soit rendue une ordonnance en vertu de l’article 58C.

6) Aucune disposition du présent article ne porte atteinte aux pouvoirs reconnus au tribunal en vertu de l’article 43 de la loi de 1973 sur les pouvoirs des tribunaux répressifs (Powers of Criminal Courts Act 1973). de l’article 223 ou 436 de la loi de 1975 (Ecosse) sur la procédure pénale (Criminal Procedure (Scotland) Act 1975) ou de l’article 7 de l’ordonnance de 1980 (Irlande du Nord) sur la justice pénale (Criminal Justice (Northern Ireland) Order 1980) (dispositions générales applicables en matière de confiscation dans le cadre de procédures pénales).

Ordonnance relative à l’affectation de produits ou d’éléments faisant l’objet du délit

58C.— 1) Lorsque des produits ou des éléments ont été remis en application d’une ordonnance rendue en vertu de l’article58B , le tribunal peut être saisi d’une requête l’invitant à rendre une ordonnance tendant à ce que lesdits produits ou éléments soient détruits ou confisqués au profit de la personne qu’il considère appropriée.

2) Le règlement du tribunal comporte des dispositions concernant la signification d’avis aux personnes ayant des droits sur les produits ou les éléments, et chacune d’elles est habilitée

a) à intervenir dans la procédure de délivrance d’une ordonnance en vertu du présent article, qu’un avis lui ait ou non été signifié, et

b) à former un recours contre toute ordonnance rendue, qu’elle soit ou non intervenue dans la procédure;

3) Lorsque plusieurs personnes ont des droits sur des produits ou des éléments, le tribunal peut rendre l’ordonnance qu’il estime équitable.

4) Dans le présent article, la mention d’une personne ayant des droits sur des produits ou des éléments doit être interprétée comme visant aussi toute personne en faveur de laquelle une ordonnance pourrait être rendue soit en vertu du présent article soit en vertu des articles 114, 204 ou 231 de la loi de

1988 sur le droit d’auteur, les dessins et modèles et les brevets (qui comportent des dispositions comparables en ce qui concerne les atteintes au droit d’auteur, aux droits afférents à des représentations ou exécutions et à des modèles).

5) Les procédures tendant à obtenir une ordonnance en vertu du présent article peuvent être engagées

a) devant un county court en Angleterre, au pays de Galles et en Irlande du Nord, à condition que la valeur des produits ou des éléments en question ne dépasse pas le montant limite déterminant la compétence du county court en matière de responsabilité civile, et

b) devant un sheriff court en Ecosse: toutefois aucune disposition du présent alinéa ne saurait être interprétée comme ayant une incidence sur la compétence de la Haute Cour (High Court) ou, en Ecosse, de la Court of Session.

Application de l’article 58A

58D.— 1) Les fonctions d’un service local des poids et mesures s’étendent à l’application dans son domaine de l’article58A .

2) Les dispositions ci—après de la loi de 1968 sur les mentions commerciales valent en ce qui concerne l’application dudit article comme en ce qui concerne l’application de ladite loi —

Article 27 (pouvoir de procéder à des achats d’essai),

Article 28 (pouvoir de pénétrer dans des locaux et d’inspecter et de saisir des produits et des documents),

Article 29 (entrave à l’action de fonctionnaires autorisés), et

Article 33 (indemnité pour perte, etc. de produits saisis en vertu de l’article28 ).

3) L’alinéa 1) ci—dessus ne vaut pas en ce qui concerne l’application de l’article 58A à I’Irlande du Nord, mais les fonctions du Département du développement économique englobent l’application dudit article à I’Irlande du Nord.

A cette fin, les dispositions de la loi de 1968 sur les mentions commerciales visées à l’alinéa 2) s’appliquent comme si les expressions ‘service local des poids et mesures’ et ‘tout fonctionnaire de ce service’ étaient remplacées par ‘Département’ et ‘I’un quelconque de ses fonctionnaires’.

4) Toute disposition législative qui autorise la divulgation d’informations en vue de faciliter l’application de la loi de 1968 sur les mentions commerciales est applicable comme si l’article58A ci—dessus figurait dans ladite loi et comme si les fonctions d’une quelconque personne relatives à l’application dudit article étaient des fonctions prévues au titre de ladite loi.”.

Dispositions en faveur de I’Hôpital des enfants malades

Dispositions en faveur de I’Hôpital des enfants malades

301. Les dispositions de l’annexe 6 confèrent aux administrateurs, en faveur de I’Hôpital des enfants malades, Great Ormond Street, Londres, le droit de percevoir une redevance en ce qui concerne la représentation en public, la publication commerciale, la radiodiffusion ou l’incorporation dans un service de câblodistribution de la pièce “Peter Pan” de Sir James Matthew Barrie, ou de toute adaptation de ladite oeuvre, bien que le droit d’auteur sur cette oeuvre soit arrivé à expiration le 31 décembre 1987.

Aide financière à certains organismes internationaux

Aide financière à certains organismes internationaux

302. 1) Le ministre peut accorder une aide financière, sous la forme de dons, prêts ou garanties à

a) toute organisation internationale dont les fonctions touchent aux marques ou à tout autre objet de propriété intellectuelle, ou

b) toute institution de la Communauté ou tout autre organisme créé en vertu des traités de la Communauté ayant des fonctions de ce genre,

en vue de la création ou de l’entretien par ladite organisation, ladite institution ou ledit organisme de locaux au Royaume—Uni.

2) Toute dépense engagée par le ministre en vertu du présent article est financée sur des crédits fournis par le Parlement et toute somme reçue par le ministre par suite du présent article est versée au Fonds consolidé.

Dispositions générales

Modifications et abrogations découlant de la présente partie

303. 1) Les dispositions législatives visées à l’annexe 7 sont modifiées conformément à ladite annexe, les modifications correspondantes résultant des dispositions de la présente loi.

2) Les dispositions législatives visées à l’annexe 8 sont abrogées dans la mesure indiquée.

Portée

304. 1) Les dispositions relatives à l’étendue de la première partie (droit d’auteur), de la deuxième partie (droits afférents aux prestations des artistes interprètes ou exécutants) et de la troisième partie (droit de modèle) sont énoncées aux articles 157, 207 et 255 respectivement; l’étendue des autres dispositions de la présente loi s’établit de la façon ci-après.

2) Les quatrième, cinquième, sixième et septième parties s’étendent à l’Angleterre et au pays de Galles, à l’Ecosse et à I’Irlande du Nord; toutefois

a) les articles 287 à 292 (tribunaux des brevets de comté) s’étendent à l’Angleterre et au Pays de Galles uniquement,

b) la législation régissant la fondation créée aux termes de l’annexe 6 (dispositions en faveur de I’Hôpital des enfants malades) est la législation de l’Angleterre et du pays de Galles, et

c) les modifications et les abrogations visées aux annexes 7 et 8 ont la même portée que les dispositions législatives modifiées ou abrogées.

3) Les dispositions ci—après s’étendent à I’Ile de Man, sous réserve de toute modification figurant dans une ordonnance en Conseil édictée par Sa Majesté,

a) les articles 293 et 294 (brevets: licences de plein droit), et b) les alinéas 24 et 29 de l’annexe 5 (brevets: effet du dépôt d’une demande

internationale de brevet et pouvoir de proroger les délais).

4) Sa Majesté peut, par ordonnance en Conseil, prévoir que les dispositions ci— après s’étendent à l’Ile de Man, sous réserve des exceptions et des modifications qui peuvent être indiquées dans l’ordonnance,

a) la quatrième partie (dessins et modèles enregistrés), b) la cinquième partie (agents de brevets), c) les dispositions de l’annexe 5 (brevets: modifications diverses) qui ne sont

pas mentionnées à l’alinéa 3) ci—dessus,

d) les articles 297 à 299 (réception frauduleuse de transmissions), et e) l’article 300 (application ou utilisation frauduleuse d’une marque). 5) Sa Majesté peut, par ordonnance en Conseil, prévoir que les articles 297à 299

(réception frauduleuse de transmissions) s’étendront à l’une quelconque des îles anglo- normandes, sous réserve des exceptions et des modifications qui peuvent être indiquées dans l’ordonnance.

6) Tout pouvoir conféré par la présente loi d’énoncer, par ordonnance en Conseil, des dispositions pour l’application des dispositions de la présente loi à un pays autre que le Royaume—Uni ou à ce propos, comprend celui d’étendre audit pays, sous réserve des modifications qui peuvent être indiquées dans l’ordonnance, toute disposition de la présente loi qui modifie ou qui abroge une disposition législative s’appliquant audit pays.

Entrée en vigueur

305. 1) Les dispositions ci—après de la présente loi entrent en vigueur lorsqu’elles sont promulguées

les alinéas 24 et 29 de l’annexe 5 (brevets: effet du dépôt d’une demande internationale de brevet et pouvoir de proroger les délais);

article 301 et annexe 6 (dispositions en faveur de I’Hôpital des enfants malades).

2) Les articles 293 et 294 (licences de plein droit) entrent en vigueur à l’expiration d’un délai de deux mois à compter de l’adoption de la présente loi.

3) Les autres dispositions de la présente loi entrent en vigueur le jour que le ministre peut indiquer par ordonnance édictée par voie de dispositions réglementaires, et des jours différents peuvent être indiqués pour différentes dispositions et à différentes fins.

Titre abrégé

306. La présente loi peut être citée comme la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets.

ANNEXES

PREMIÈRE ANNEXE

(article 170)

DROIT D’AUTEUR: DISPOSITIONS TRANSITOIRES ET CLAUSES DE SAUVEGARDE

Dispositions liminaires

1.— 1) Dans la présente annexe, on entend par

“loi de 1911”, la loi de 1911 sur le droit d’auteur,

“loi de 1956”, la loi de 1956 sur le droit d’auteur, et

“nouvelles dispositions sur le droit d’auteur”, les dispositions de la présente loi relatives au droit d’auteur, c’est—à—dire. la première partie (y compris la présente annexe) et les annexes 3, 7 et 8 dans la mesure où elles énoncent des modifications ou des abrogations qui sont la conséquence des dispositions de la première partie.

2) Dans la présente annexe, l’expression “entrée en vigueur”, sans autre précision, s’entend de la date à laquelle les nouvelles dispositions sur le droit d’auteur entrent en vigueur.

3) Dans la présente annexe, l’expression “d’œuvres existantes” s’entend des d’œuvres réalisées avant l’entrée en vigueur: et à cet effet, une oeuvre dont la réalisation a duré un certain temps est considérée comme ayant été réalisée à la date de son achèvement.

2.— 1) Par rapport à la loi de 1956, toute mention d’une oeuvre dans la présente annexe comprend toute oeuvre ou tout autre objet au sens de ladite loi.

2) Par rapport à la loi de 1911,

a) dans la présente annexe, toute mention du droit d’auteur vise aussi le droit conféré par l’article24 de ladite loi en remplacement d’un droit existant immédiatement avant l’entrée en vigueur de ladite loi;

b) dans la présente annexe, toute mention du droit d’auteur sur un enregistrement sonore vise aussi le droit d’auteur conféré en vertu de ladite loi en ce qui concerne les phonogrammes comprenant l’enregistrement; et

c) dans la présente annexe, toute mention du droit d’auteur sur un film vise aussi tout droit d’auteur conféré en vertu de ladite loi sur le film (dans la mesure où il constituait une oeuvre dramatique aux fins de ladite loi) ou sur des photographies faisant partie du film.

Principes généraux: continuité de la loi

3. Les nouvelles dispositions sur le droit d’auteur sont applicables en ce qui concerne les choses qui existaient lors de l’entrée en vigueur de la même façon qu’elles sont applicables en ce qui concerne les choses qui viennent à exister après l’entrée en vigueur, sous réserve de toute disposition indiquant expressément le contraire.

4.— 1) Les dispositions du présent alinéa ont pour effet d’assurer la continuité de la loi dans la mesure où les nouvelles dispositions sur le droit d’auteur donnent de nouveau force de loi (avec ou sans modification) aux dispositions antérieures. 2) Toute mention dans un texte législatif, un instrument ou tout autre document d’un droit d’auteur ou d’une oeuvre ou de tout autre objet sur lequel il existe un droit d’auteur, qui en dehors de la présente loi serait interprétée comme visant un droit d’auteur conféré en vertu de la loi de 1956, doit être interprétée. dans le mesure où cela peut être nécessaire pour que ce droit continue de déployer ses effets, comme désignant, ou le cas échéant, comprenant un droit d’auteur conféré en vertu de la présente loi ou des d’œuvres sur lesquelles existe un droit d’auteur en vertu de la présente loi.

3) Tout acte accompli (y compris l’élaboration de textes d’application), ou déployant ses effets tel qu’il a été accompli, en vertu ou aux fins d’une disposition abrogée par la présente loi, déploie ses effets comme s’il avait été accompli en vertu ou aux fins de la disposition correspondante des nouvelles dispositions sur le droit d’auteur.

4) Tout renvoi (exprès ou implicite) dans la présente loi ou tout autre texte législatif, instrument ou document à l’une quelconque des nouvelles dispositions sur le droit d’auteur doit être interprété, dans la mesure où le contexte le permet, comme renvoyant aussi, en ce qui concerne les dates, les circonstances et les objectifs précédant l’entrée en vigueur, aux dispositions antérieures correspondantes.

5) Tout renvoi (exprès ou implicite) dans un texte législatif, un instrument ou autre document à une disposition abrogée par la présente loi doit être interprété, dans la mesure où cela est nécessaire pour que cette disposition continue de déployer ses effets, comme renvoyant à la disposition correspondante de la présente loi.

6) Les dispositions du présent alinéa déploient leurs effets sous réserve de toute disposition transitoire ou clause de sauvegarde particulière et de toute modification expresse contenue dans la présente loi.

Continuation du droit d’auteur

5.— 1) Un droit d’auteur ne continue d’exister sur une oeuvre existante après l’entrée en vigueur que si le droit d’auteur existait sur cette oeuvre immédiatement avant l’entrée en vigueur.

2) Le sous—alinéa 1) n’exclut pas la possibilité pour une oeuvre existante de remplir les conditions nécessaires pour être protégée par un droit d’auteur après l’entrée en vigueur

a) en vertu de l’article 155 (application en vertu de la première publication), ou b) en vertu d’une ordonnance rendue selon l’article159 (application de la

première partie aux pays auxquels elle ne s’étend pas).

6.— 1) Il n’existe pas, en vertu de la présente loi, de droit d’auteur sur une oeuvre artistique créée avant le 1er juin 1957 qui, au moment où l’oeuvre a été créée, constituait un dessin ou un modèle susceptible d’être enregistré conformément à la loi de 1949 sur les dessins et modèles enregistrés ou conformément aux textes législatifs abrogés par ladite loi, et était utilisée ou destinée à être utilisée comme un type destiné à être multiplié par un procédé industriel.

2) A cet effet, un dessin ou un modèle est considéré comme utilisé en tant que type destiné à être multiplié par un procédé industriel quelconque

a) lorsque le dessin ou le modèle est reproduit ou destiné à être reproduit sur plus de 50 articles isolés, à moins que tous les articles sur lesquels le dessin ou le modèle est reproduit ou destiné à être reproduit ne forment qu’une seule série d’articles, selon la définition donnée à l’alinéa

1) de l’article 44 de la loi de 1949 sur les dessins et modèles enregistrés. ou

b) lorsque le dessin ou le modèle doit être appliqué sur: i) des papiers peints,

ii) des tapis, linoléums ou toiles cirées, fabriqués ou vendus en diverses longueurs ou à la pièce.

iii) des textiles ou articles textiles, fabriqués ou vendus en diverses longueurs ou à la pièce, ou

iv) des dentelles, non faites à la main.

7.— 1) Il n’existe aucun droit d’auteur sur un film, considéré en tant que tel, réalisé avant le 1er juin 1957.

2) Lorsqu’un film réalisé avant cette date constituait une oeuvre dramatique originale au sens de la loi de 1911, les nouvelles dispositions sur le droit d’auteur déploient leurs effets en ce qui concerne ce film comme s’il s’agissait d’une oeuvre dramatique originale au sens de la première partie.

3) Les nouvelles dispositions sur le droit d’auteur déploient leurs effets en ce qui concerne les photographies qui font partie d’un film réalisé avant le 1er juin 1957 comme elles produisent leurs effets en ce qui concerne les photographies qui ne font pas partie d’un film.

8.— 1) La bande sonore d’un film à laquelle s’appliquait l’article 13.9) de la loi de 1956 avant l’entrée en vigueur (un film étant considéré comme comprenant les sons incorporés dans toute bande sonore qui lui est associée) est considérée aux fins des nouvelles dispositions sur le droit d’auteur comme ne faisant pas partie du film, mais comme un enregistrement sonore.

2) Toutefois

a) un droit d’auteur continue d’exister sur l’enregistrement sonore uniquement si le droit d’auteur existait sur le film immédiatement avant l’entrée en vigueur et il continue d’exister jusqu’à ce que le droit d’auteur sur le film arrive à expiration;

b) l’auteur et le premier titulaire du droit d’auteur sur le film sont considérés comme auteur et premier titulaire du droit d’auteur sur l’enregistrement sonore; et

c) tout acte accompli avant l’entrée en vigueur en vertu ou à propos du droit d’auteur sur le film continue de déployer ses effets en ce qui concerne l’enregistrement sonore comme en ce qui concerne le film.

9. Il n’existe aucun droit d’auteur sur

a) une émission réalisée avant le 1er juin 1957, ou b) un programme distribué par câble compris dans un service de

câblodistribution avant le 1er janvier 1985:

et une quelconque émission de ce genre ou un quelconque programme distribué par câble de ce genre est exclu aux fins de l’article 14.2) (durée du droit d’auteur sur les rediffusions).

Paternité de l’oeuvre

10. L’auteur d’une oeuvre existante est déterminé conformément aux nouvelles dispositions sur le droit d’auteur aux fins des droits conférés par le chapitre IV de la première partie (droits moraux) et est déterminé à toutes autres fins conformément à la législation en vigueur à la date où l’oeuvre a été réalisée.

Premier titulaire du droit d’auteur

11.— 1) Le premier titulaire du droit d’auteur sur une oeuvre existante est déterminé conformément à la législation en vigueur à la date à laquelle l’oeuvre a été réalisée.

2) Lorsque, avant l’entrée en vigueur, une personne a commandé la réalisation d’une oeuvre dans des circonstances relevant

a) de l’article 4.3) de la loi de 1956 ou de l’alinéa a) de la clause conditionnelle dont est assorti l’article 5.1) de la loi de 1911 (photographies, portraits et gravures), ou

b) de la clause conditionnelle dont est assorti l’article 12.4) de la loi de 1956 (enregistrements sonores),

ces dispositions sont applicables en vue de déterminer le premier titulaire du droit d’auteur sur toute oeuvre réalisée sur commande après l’entrée en vigueur.

Durée du droit d’auteur sur des d’œuvres existantes

12.— 1) Les dispositions ci-après déploient leurs effets en ce qui concerne la durée du droit d’auteur sur des d’œuvres existantes.

Il est décidé d’appliquer telle ou telle disposition à une oeuvre en fonction des faits précédant immédiatement l’entrée en vigueur, et les expressions utilisées dans le présent alinéa qui ont été définies aux fins de la loi de 1956 ont le même sens que dans ladite loi.

2) Le droit d’auteur sur les catégories d’œuvres ci-après continue d’exister jusqu’à la date à laquelle il aurait expiré en vertu de la loi de 1956

a) d’œuvres littéraires, dramatiques ou musicales en ce qui concerne lesquelles la période de 50 ans visée dans la clause conditionnelle dont est assorti l’article 2.3) de la loi de 1956 (durée du droit d’auteur sur les d’œuvres mises à la disposition du public après le décès de l’auteur) a commencé de courir:

b) gravures en ce qui concerne lesquelles la période de 50 ans visée dans la clause conditionnelle dont est assorti l’article 3.4) de la loi de 1956 (durée du droit d’auteur sur les d’œuvres publiées après le décès de l’auteur) a commencé de courir;

c) photographies publiées et photographies prises avant le 1er juin 1957; d) enregistrements sonores publiés et enregistrements sonores réalisés avant le

1er juin 1957;

e) films publiés et films relevant de l’article 13.3) a) de la loi de 1956 (films enregistrés en vertu de textes législatifs antérieurs relatifs à l’enregistrement des films).

3) Le droit d’auteur sur des d’œuvres littéraires, dramatiques, musicales ou artistiques (autres que des photographies) anonymes ou pseudonymes continue d’exister

a) si l’oeuvre est publiée, jusqu’à la date à laquelle il aurait pris fin conformément à la loi de 1956, et

b) si l’oeuvre n’est pas publiée, jusqu’à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle les nouvelles dispositions sur le droit d’auteur entrent en vigueur ou, si pendant la période au cours de laquelle l’oeuvre a pour la première fois été rendue accessible au public au sens de l’article12.2) (durée du droit d’auteur sur les d’œuvres d’auteur inconnu), la date à laquelle le droit d’auteur prend fin conformément à ladite disposition,

sauf si, en tout état de cause, l’identité de l’auteur vient à être connue avant cette date, auquel cas l’article12.1) est applicable (règle générale: vie de l’auteur plus 50 ans).

4) Le droit d’auteur sur les catégories d’œuvres ci-après continue d’exister jusqu’à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle les nouvelles dispositions sur le droit d’auteur entrent en vigueur

a) les d’œuvres littéraires, dramatiques et musicales dont l’auteur est décédé et en ce qui concerne lesquelles aucun des actes mentionnés aux alinéas a) à e) de la clause conditionnelle dont est assorti l’article 2.3) de la loi de 1956 a été accompli;

b) les gravures non publiées dont l’auteur est décédé; c) les photographies non publiées prises le 1er juin 1957 ou après cette date. 5) Le droit d’auteur sur les catégories d’œuvres ci-après continue d’exister jusqu’à

l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle les nouvelles dispositions sur le droit d’auteur entrent en vigueur

a) les enregistrements sonores non publiés réalisés le 1er juin 1957 ou après cette date,

b) les films qui ne relèvent pas du sous-alinéa 2)e)ci-dessus. sauf si l’enregistrement ou le film est publié avant l’expiration de ladite période, auquel cas le droit d’auteur sur celui-ci continue d’exister jusqu’à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle l’enregistrement ou le film est publié.

6) Le droit d’auteur sur toute autre catégorie d’œuvres existantes continue d’exister jusqu’à la date à laquelle le droit d’auteur sur cette catégorie d’œuvres prend fin conformément aux articles 12 à 15de la présente loi.

7) Les dispositions ci-dessus ne sont pas applicables aux d’œuvres protégées par un droit d’auteur de la Couronne ou des Assemblées parlementaires (voir les alinéas 41 à 43 ci-dessous).

Droit d’auteur perpétuel en vertu de la loi de 1775 sur le droit d’auteur

13.— 1) Les droits conférés aux universités par la loi de 1775 sur le droit d’auteur continuent d’exister jusqu’à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle les nouvelles dispositions sur le droit d’auteur entrent en vigueur et prennent fin ensuite.

2) Les dispositions des chapitres ci-après de la première partie chapitre III (actes autorisés par rapport à des d’œuvres protégées), chapitre VI (recours en cas d’atteinte au droit d’auteur), chapitre VII (dispositions relatives aux licences en matière de droit d’auteur), et chapitre VIII (le tribunal du droit d’auteur),

sont applicables en ce qui concerne ces droits comme elles sont applicables en ce qui concerne le droit d’auteur en vertu de la présente loi.

Actes constituant une atteinte au droit d’auteur

14.— 1) Les dispositions des chapitres II et III de la première partie en ce qui concerne les actes qui constituent une atteinte au droit d’auteur sont applicables en ce qui concerne les actes accomplis après l’entrée en vigueur; les dispositions de la loi de 1956 continuent d’être applicables en ce qui concerne les actes accomplis avant l’entrée en vigueur.

2) La partie de l’article 18.2) qui étend l’acte réservé consistant à diffuser des copies dans le public de façon à englober la location au public de copies d’enregistrements sonores, de films ou programmes d’ordinateur n’est pas applicable en ce qui concerne la copie d’un enregistrement sonore, d’un film ou d’un programme d’ordinateur acquise par une personne quelconque avant l’entrée en vigueur en vue de la louer au public.

3) Aux fins de l’article 27 (sens de l’expression “copie ou exemplaire contrefait”), la question de savoir si la fabrication ou la réalisation d’un objet constituait une atteinte au droit d’auteur ou aurait constitué une atteinte au droit d’auteur si l’objet avait été réalisé ou fabriqué au Royaume-Uni est tranchée

a) en ce qui concerne un objet réalisé ou fabriqué le 1er juin 1957 ou après cette date et avant l’entrée en vigueur, en fonction de la loi de 1956, et

b) en ce qui concerne un objet réalisé ou fabriqué avant le 1er juin 1957, en fonction de la loi de 1911.

4) Aux fins de l’application des articles 31.2), 51.2) et 62.3) (exploitation ultérieure de choses dont la réalisation ne constituait pas, en vertu d’une disposition précédente de l’article, une atteinte au droit d’auteur) aux choses réalisées avant l’entrée en vigueur, il est supposé que les nouvelles dispositions sur le droit d’auteur étaient en vigueur à un moment déterminé.

5) L’article 55 (objets servant à établir un texte dans un caractère typographique donné) est applicable lorsque les objets ont été commercialisés de la façon indiquée au sous-alinéa 1) avant l’entrée en vigueur, la période mentionnée au sous-alinéa 3) étant remplacée par une période de 25 ans à compter de la fin de l’année civile au cours de laquelle les nouvelles dispositions sur le droit d’auteur entrent en vigueur.

6) L’article 56 (transfert de copies, d’adaptations, etc. d’œuvres sous forme électronique) n’est pas applicable en ce qui concerne une copie achetée avant l’entrée en vigueur.

7) A l’article 65 (reconstruction d’édifices), la mention du titulaire du droit d’auteur sur les dessins ou les plans vise aussi, en ce qui concerne les édifices construits avant l’entrée en vigueur, la personne qui, au moment de la construction, était titulaire du droit d’auteur sur les dessins ou les plans en vertu de la loi de 1956, de la loi de 1911 ou de toute disposition législative abrogée par la loi de 1911.

15.— 1) L’article 57 (d’œuvres anonymes ou pseudonymes: actes autorisés dans l’hypothèse de l’expiration du droit d’auteur ou du décès de l’auteur) déploie ses effets en ce qui concerne les d’œuvres existantes sous réserve des dispositions ci-après.

2) L’alinéa 1)b)i) (on suppose que le droit d’auteur est expiré) n’est pas applicable en ce qui concerne

a) les photographies, ou b) les droits mentionnés à l’alinéa 13ci-dessus (droits conférés par la loi de

1775 sur le droit d’auteur).

3) L’alinéa 1)b)ii) (on suppose que l’auteur est décédé) n’est applicable que

a) si l’alinéa 12.3)b) ci-dessus est applicable (d’œuvres anonymes ou pseudonymes non publiées), après l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle les nouvelles dispositions sur le droit d’auteur entrent en vigueur, ou

b) si l’alinéa 12.6) ci-dessus est applicable (cas dans lesquels la durée du droit d’auteur est la même selon les nouvelles dispositions sur le droit d’auteur que d’après la loi antérieure).

16. Les dispositions ci-après de l’article7 de la loi de 1956 continuent d’être applicables en ce qui concerne les d’œuvres existantes

a) l’alinéa 6) (reproduction d’œuvres non publiées à partir d’un manuscrit ou d’une copie conservés dans une bibliothèque, un musée ou une autre institution);

b) l’alinéa 7) (publication d’une oeuvre comprenant des éléments auxquels l’alinéa 6) est applicable), sauf le sous-alinéa a) (obligation de donner un préavis relatif à l’intention de publier l’oeuvre);

c) l’alinéa 8) (radiodiffusion, représentation ou exécution, etc. ultérieure d’éléments publiés conformément à l’alinéa 7);

et l’alinéa 9)d) (illustrations) continue d’être applicable aux fins de ces dispositions. 17. Si, dans le cas d’une oeuvre dramatique ou musicale réalisée avant le 1er juillet

1912, le droit conféré par la loi de 1911 ne comprenait pas le droit exclusif de représenter ou d’exécuter l’oeuvre en public, les actes réservés au titre du droit d’auteur sont considérés comme ne comprenant pas

a) la représentation ou l’exécution de l’oeuvre en public, b) la radiodiffusion de l’oeuvre ou l’inclusion de celle-ci dans un service de

câblodistribution, ou

c) l’accomplissement de l’un quelconque des actes ci-dessus en ce qui concerne une adaptation de l’oeuvre;

et si le droit conféré par la loi de 1911 consistait uniquement en un droit exclusif de représenter ou d’exécuter l’oeuvre en public, les actes réservés au titre du droit d’auteur sont considérés comme comprenant uniquement les actes en question.

18. Lorsqu’une oeuvre réalisée avant le 1er juillet 1912 consiste en un essai, un article ou une contribution contenu et publié pour la première fois dans une revue, un magazine ou un autre périodique, ou en une oeuvre de même nature, le droit d’auteur est subordonné à tout droit de publier l’essai, l’article ou la contribution sous une forme distincte dont l’auteur était titulaire à la date d’entrée en vigueur de la loi de 1911, ou aurait été titulaire, si ladite loi n’avait pas été adoptée, en vertu de l’article18 de la loi de 1842 sur le droit d’auteur.

Dessins et modèles

19.— 1) L’article 51 (exclusion de la protection par le droit d’auteur en ce qui concerne les d’œuvres figurant dans un document dans lequel un modèle est consigné ou

dans une maquette reprenant un modèle) n’est pas applicable pendant 10 ans après l’entrée en vigueur en ce qui concerne un modèle consigné dans un document ou repris sur une maquette avant l’entrée en vigueur.

2) Pendant ces 10 ans, les dispositions ci-après de la troisième partie (droit de modèle) sont applicables à tout droit d’auteur correspondant comme en ce qui concerne le droit de modèle

a) les articles 237 à 239 (disponibilité de licences de plein droit), et b) les articles 247 et 248 (requête au contrôleur tendant à la fixation des

conditions dont est assortie une licence de plein droit).

3) A l’article 237, dans la mesure où il est applicable en vertu du présent alinéa, il faut remplacer à l’alinéa 1) la mention des cinq dernières années de la durée d’un droit de modèle par la mention des cinq dernières années de la période de 10 ans mentionnée au sous-alinéa 1) ci-dessus, ou de la partie de ces cinq dernières années pendant laquelle il existe un droit d’auteur.

4) A l’article 239, dans la mesure où il est applicable en vertu du présent alinéa, la mention à l’alinéa 1)b) de l’article 230 est remplacée par une mention de l’article 99.

5) Lorsqu’une licence de plein droit est disponible en vertu du présent alinéa, une personne à laquelle une licence a été accordée avant l’entrée en vigueur peut demander au contrôleur de rendre une ordonnance adaptant les conditions de la licence.

6) Les dispositions des articles 249 et 250 (recours et dispositions réglementaires) sont applicables en ce qui concerne les procédures engagées en vertu du présent alinéa comme pour ce qui est des procédures engagées en vertu de la troisième partie.

7) Une licence accordée en vertu du présent alinéa ne porte que sur les actes qui seraient autorisés par l’article51si le document dans lequel un modèle est consigné ou si la maquette avaient été réalisés après l’entrée en vigueur.

8) L’article 100 (droit de saisir des copies ou exemplaires contrefaits etc.) n’est pas applicable pendant la période de 10 ans mentionnée dans le sous-alinéa 1) en ce qui concerne tout élément auquel il ne serait pas applicable si le modèle en question avait été consigné pour la première fois dans un document ou repris pour la première fois dans une maquette après l’entrée en vigueur.

9) Aucune disposition du présent alinéa ne porte atteinte à l’application d’une quelconque règle de droit empêchant ou limitant l’exercice du droit d’auteur en ce qui concerne un dessin ou on modèle.

20.— 1) Lorsque l’article 10 de la loi de 1956 (effet de l’application industrielle d’un dessin ou modèle correspondant à une oeuvre artistique) est applicable par rapport à une oeuvre artistique à tout moment avant l’entrée en vigueur, l’article 52.2) de la présente loi est applicable, à condition de remplacer la période de 25 ans qui y est mentionnée par la période de 15 ans définie à l’article10.3) de la loi de 1956.

2) Sauf disposition contraire énoncée au sous-alinéa 1), l’article52 n’est applicable que lorsque des objets sont commercialisés de la façon mentionnée au sous-alinéa 1)b) après l’entrée en vigueur.

Abolition de la licence légale d’enregistrement

21. L’article 8 de la loi de 1956 (licence légale quant à la copie d’enregistrements vendus au détail) continue d’être applicable lorsque le préavis prescrit à l’alinéa 1)b) dudit article a été donné avant que l’article en question soit abrogé par la présente loi, mais uniquement en ce qui concerne la réalisation d’enregistrements

a) dans le délai d’un an à compter de la date d’entrée en vigueur de l’abrogation, et

b) à concurrence du nombre d’exemplaires qu’il est prévu de vendre selon le préavis.

Droits moraux

22.— 1) Aucun acte accompli avant l’entrée en vigueur ne peut faire l’objet d’une action en vertu d’une quelconque disposition du chapitre IV de la première partie (droits moraux).

2) L’article 43 de la loi de 1956 (fausse attribution de la qualité d’auteur) continue d’être applicable en ce qui concerne les actes accomplis avant l’entrée en vigueur.

23.— 1) Les dispositions ci-après déploient leurs effets en ce qui concerne les droits conférés par

a) l’article 77 (droit d’être identifié en tant qu’auteur ou réalisateur), et b) l’article 80 (droit de s’opposer à toute atteinte à l’oeuvre). 2) Les droits ne sont pas applicables

a) en ce qui concerne une oeuvre littéraire, dramatique, musicale et artistique dont l’auteur est décédé avant l’entrée en vigueur, ou

b) en ce qui concerne un film réalisé avant l’entrée en vigueur. 3) Les droits relatifs à une oeuvre littéraire, dramatique, musicale ou artistique

existante ne sont pas applicables

a) lorsque le droit d’auteur appartient à titre originaire à l’auteur, à un quelconque acte qui en vertu d’une cession du droit d’auteur ou d’une licence respectivement réalisée ou accordée avant l’entrée en vigueur peut être accompli sans qu’il soit porté atteinte au droit d’auteur;

b) lorsque le droit d’auteur appartient à titre originaire à une personne autre que l’auteur, à un quelconque acte accompli par le titulaire du droit d’auteur ou avec l’autorisation de ce dernier.

4) Les droits ne sont applicables à aucun acte accompli en ce qui concerne un enregistrement réalisé conformément à l’article 8 de la loi de 1956 (licence légale d’enregistrement).

24. Le droit conféré par l’article 85(droit à la non-divulgation de certains films et photographies) n’est pas applicable aux photographies prises ou aux films réalisés avant l’entrée en vigueur.

Cessions et licences

25.— 1) Tout document qui a été établi ou tout événement qui est survenu avant l’entrée en vigueur et qui

a) a eu une incidence sur la titularité du droit d’auteur sur une oeuvre existante, ou

b) a abouti à la constitution, à la transmission ou à l’extinction d’une prérogative, d’un droit ou d’une licence en ce qui concerne le droit d’auteur sur une oeuvre existante,

emporte les mêmes effets au regard du droit d’auteur existant sur l’oeuvre en vertu de la présente loi.

2) Les expressions utilisées dans un document de ce genre sont interprétées conformément à leur effet immédiatement avant l’entrée en vigueur.

26.— 1) L’article 91.1) de la présente loi (cession d’un droit d’auteur à venir: reconnaissance légale des prérogatives juridiques au moment où le droit d’auteur prend naissance) n’est pas applicable en ce qui concerne un accord conclu avant le 1er juin 1957.

2) L’abrogation aux termes de la présente loi de l’article 37.2) de la loi de 1956 (cession d’un droit d’auteur à venir: attribution du droit lorsque le cessionnaire meurt avant que le droit d’auteur prenne naissance) n’a aucun effet sur l’application de ladite disposition en ce qui concerne un accord conclu avant l’entrée en vigueur.

27.— 1) Lorsque l’auteur d’une oeuvre littéraire, dramatique, musicale ou artistique était le premier titulaire du droit d’auteur sur cette oeuvre, aucune cession du droit d’auteur et aucune reconnaissance d’une quelconque prérogative afférente à ce droit, de la part de celui-ci (autrement que par voie testamentaire), intervenue après l’adoption de la loi de 1911 et avant le 1er juin 1957 n’a pour effet de conférer au cessionnaire ou au bénéficiaire précité un quelconque droit en ce qui concerne le droit d’auteur sur l’oeuvre après l’expiration d’une période de 25 ans à compter du décès de l’auteur.

2) Toutes les prérogatives afférentes au droit d’auteur qui devraient revenir à l’auteur à l’expiration de la période précitée peuvent, après l’entrée en vigueur, être cédées par l’auteur de son vivant mais, en l’absence d’une quelconque cession, sont dévolues, au décès de l’auteur, à son exécuteur testamentaire au titre de la succession.

3) Aucune disposition du présent alinéa ne porte atteinte

a) à une cession des prérogatives réversibles par une personne à laquelle elles ont été cédées:

b) à une cession des prérogatives réversibles après le décès de l’auteur par ses exécuteurs testamentaires ou toute personne qui acquiert le droit d’en bénéficier, ou

c) à une cession du droit d’auteur après que les prérogatives réversibles sont devenues disponibles.

4) Aucune disposition du présent alinéa ne s’applique à la cession du droit d’auteur sur une oeuvre collective ni à une licence relative à la publication de la totalité ou d’une partie d’une oeuvre dans le cadre d’une oeuvre collective.

5) Dans le sous-alinéa 4) “oeuvre collective” s’entend

a) d’une encyclopédie, d’un dictionnaire, d’un annuaire ou d’une oeuvre analogue.

b) d’un journal, d’une revue, d’un magazine ou d’un périodique analogue, et c) de toute oeuvre qui est écrite, en parties distinctes, par différents auteurs, ou

qui comprend des d’œuvres ou des extraits d’œuvres d’auteurs différents.

28.— 1) Le présent alinéa est applicable lorsqu’un droit d’auteur existe sur une oeuvre littéraire, dramatique, musicale ou artistique réalisée avant le 1er juillet 1912 et que ce droit a fait l’objet de la part de l’auteur, avant l’entrée en vigueur de la loi de 1911, d’une cession ou d’une concession du type visé au sous-alinéa a) de la clause conditionnelle de l’article 24.1) de ladite loi (cession ou concession d’un droit d’auteur ou d’un droit de représentation et d’exécution pour toute la durée du droit en vertu de la loi antérieure).

2) Si, avant l’entrée en vigueur, il s’est produit un événement ou il a été donné un avis qui, en vertu de l’alinéa 38 de l’annexe 7 de la loi de 1956, a eu une incidence quelconque au regard du droit d’auteur sur l’oeuvre conféré par ladite loi, l’événement ou l’avis en question a la même incidence au regard du droit d’auteur existant en vertu de la présente loi.

3) Tout droit qui, immédiatement avant l’entrée en vigueur, aurait pu être exercé, en vertu de l’alinéa 38.3) de ladite annexe, au regard de l’oeuvre ou du droit d’auteur sur celle-ci peut être exercé au regard de l’oeuvre ou du droit d’auteur existant sur l’oeuvre en vertu de la présente loi.

4) Au cas où, en application de l’alinéa 38.4) de ladite annexe, le droit d’auteur serait revenu, à une date postérieure à l’entrée en vigueur de la loi de 1956, à l’auteur ou à ses exécuteurs testamentaires et au cas où ladite date tombe après l’entrée en vigueur des nouvelles dispositions sur le droit d’auteur

a) le droit d’auteur sur l’oeuvre revient à l’auteur ou à ses exécuteurs testamentaires, selon le cas, et

b) toute prérogative dont jouirait toute autre personne sur ce droit d’auteur à la date considérée en vertu de tout document établi avant l’entrée en vigueur de la loi de 1911 prend fin à cette même date.

29. L’article 92.2) de la présente loi (droits d’un titulaire d’une licence exclusive à l’égard des ayants cause de la personne accordant la licence) n’est pas applicable en ce qui concerne une licence exclusive accordée avant l’entrée en vigueur.

Legs

30.— 1) L’article 93 de la présente loi (transmission du droit d’auteur par testament avec le document original ou toute autre pièce contenant une oeuvre non publiée)

a) n’est pas applicable lorsque le testateur est décédé avant le 1er juin 1957, et b) lorsque le testateur est décédé à ou après ladite date et avant l’entrée en

vigueur, ne s’applique qu’en ce qui concerne un document original contenant une oeuvre.

2) Dans le cas d’un auteur décédé avant le 1er juin 1957, le fait pour une personne de posséder, après le décès de celui-ci, un de ses manuscrits lorsque la personne en question en a acquis la propriété en vertu du testament de l’auteur et que le manuscrit correspond à une oeuvre qui n’a été ni publiée ni représentée ou exécutée en public, tend à prouver que le propriétaire du manuscrit est titulaire du droit d’auteur.

Recours en cas d’atteinte au droit d’auteur

31.— 1) Les articles 96 et 97 de la présente loi (recours en cas d’atteinte au droit d’auteur) ne sont applicables qu’en ce qui concerne une atteinte au droit d’auteur commise après l’entrée en vigueur; l’article 17 de la loi de 1956 continue d’être applicable en ce qui concerne les atteintes portées avant l’entrée en vigueur.

2) Les articles 99 et 100 de la présente loi (remise ou saisie de copies ou exemplaires contrefaits, etc.) sont applicables aux copies ou exemplaires contrefaits ou aux autres objets de contrefaçon faits avant ou après l’entrée en vigueur; l’article 18 de la loi de 1956 et l’article 7de la loi de 1911 (dommages-intérêts pour appropriation, etc.) ne sont pas applicables après l’entrée en vigueur sauf aux fins de procédures engagées avant l’entrée en vigueur.

3) Les articles 101 à 102 de la présente loi (droits et moyens de recours du preneur d’une licence exclusive) sont applicables lorsque les articles 96 à 100 de la présente loi s’appliquent; l’article 19 de la loi de 1956 continue d’être applicable lorsque l’article 17 ou 18 de ladite loi s’applique.

4) Les articles 104 à 106 de la présente loi (présomptions) ne sont applicables que pour les procédures engagées en vertu de la présente loi; l’article 20 de la loi de 1956 continue d’être applicable en ce qui concerne les procédures engagées en vertu de ladite loi.

32. Les articles 101 et 102 de la présente loi (droits et moyens de recours du preneur d’une licence exclusive) ne sont pas applicables en ce qui concerne une licence accordée avant le 1er juin 1957.

33.— 1) Les dispositions de l’article 107 de la présente loi (responsabilité pénale liée à la fabrication et à l’exploitation d’objets de contrefaçon, etc.) ne sont applicables qu’en ce qui concerne des actes accomplis après l’entrée en vigueur; l’article 21 de la loi de 1956 (sanctions et procédure sommaire en ce qui concerne les agissements portant atteinte à un droit d’auteur) continue d’être applicable en ce qui concerne les actes accomplis avant l’entrée en vigueur.

2) L’article 109 de la présente loi (mandats de perquisition) est applicable en ce qui concerne les délits commis avant l’entrée en vigueur auxquels l’article 21A ou 21B de la loi de 1956 était applicable; les articles 21A et 21B continuent d’être applicables en ce qui concerne les mandats délivrés avant l’entrée en vigueur.

Le tribunal du droit d’auteur: procédures en cours à la date d’entrée en vigueur

34.— 1) Le ministre de la justice peut, après avoir consulté le procureur général, prévoir, dans le cadre de règlements, les dispositions qu’il estime nécessaires ou utiles en ce qui concerne les procédures en cours en vertu de la quatrième partie de la loi de 1956 immédiatement avant l’entrée en vigueur.

2) Les règlements édictés en application du présent alinéa sont susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Condition d’application de la protection

35. Chaque oeuvre sur laquelle il existait un droit d’auteur en vertu de la loi de 1956 immédiatement avant l’entrée en vigueur est considérée comme remplissant les conditions de la première partie de la présente loi en ce qui concerne l’application de la protection.

Territoires dépendants

36.— 1) La loi de 1911 reste en vigueur en tant que partie intégrante de la législation d’un quelconque territoire dépendant dans lequel elle était en vigueur immédiatement avant l’entrée en vigueur jusqu’à ce que

a) les nouvelles dispositions sur le droit d’auteur entrent en vigueur sur ce territoire en vertu d’une ordonnance édictée selon l’article157de la présente loi (pouvoir d’étendre les nouvelles dispositions sur le droit d’auteur), ou

b) dans le cas de l’une quelconque des îles anglo-normandes, la loi soit abrogée aux termes d’une ordonnance édictée en vertu du sous-alinéa 3) ci-dessous.

2) Une ordonnance en Conseil en vigueur immédiatement avant l’entrée en vigueur qui étend à un quelconque territoire dépendant toute disposition de la loi de 1956 reste en vigueur en tant que partie intégrante de la législation de ce territoire jusqu’à ce que

a) les nouvelles dispositions sur le droit d’auteur entrent en vigueur dans ledit territoire en vertu d’une ordonnance édictée selon l’article157de la présente loi (pouvoir d’étendre les nouvelles dispositions sur le droit d’auteur), ou

b) dans le cas de l’Ile de Man, l’ordonnance soit annulée par une ordonnance édictée en vertu du sous-alinéa 3) ci-dessous;

en outre, tant qu’elle reste en vigueur, une ordonnance de ce genre peut être modifiée conformément aux dispositions de la loi de 1956 en vertu desquelles elle a été édictée.

3) Si elle estime que des dispositions sur le droit d’auteur ont été incorporées dans la législation de l’une quelconque des îles anglo-normandes ou de l’Ile de Man autrement que par l’extension des dispositions de la première partie de la présente loi, Sa Majesté peut, par ordonnance en Conseil, abroger la loi de 1911 dans la mesure où elle déploie ses effets en tant que partie intégrante de la législation dudit territoire ou, le cas échéant, annuler l’ordonnance étendant à ce territoire la loi de 1956.

4) Un territoire dépendant dans lequel la loi de 1911 ou la loi de 1956 demeure en vigueur est considéré, dans la législation des pays auxquels s’étend la première partie,

comme un pays auquel s’étend ladite partie; les pays en question sont considérés dans la législation d’un territoire de ce genre comme des pays auxquels s’étend la loi de 1911 ou, le cas échéant, la loi de 1956.

5) Si un pays dans lequel la loi de 1911 ou la loi de 1956 est en vigueur cesse d’être une colonie du Royaume-Uni, l’article 158 de la présente loi (conséquences pour un pays qui cesse d’être une colonie) est applicable dans la mesure où, dans l’alinéa 3)b), la mention des dispositions de la première partie de la présente loi est remplacée par la mention des dispositions de la loi de 1911 ou de la loi de 1956, selon le cas.

6) Dans le présent alinéa, l’expression “territoire dépendant” désigne l’une quelconque des îles anglo-normandes, l’Ile de Man ou une quelconque colonie.

37.— 1) Le présent alinéa s’applique à un pays qui, immédiatement avant l’entrée en vigueur, n’était pas un territoire dépendant au sens de l’alinéa 36 ci-dessus, mais

a) était un pays auquel s’étendait la loi de 1956, ou b) était considéré comme un pays de ce genre en vertu de l’alinéa 39.2) de

l’annexe 7 de ladite loi (pays auxquels la loi de 1911 s’appliquait ou qui étaient considérés comme tels);

en outre, Sa Majesté peut, par ordonnance en Conseil, proclamer aux fins du présent alinéa qu’il s’agissait d’un pays de ce genre ou que le pays en question était considéré comme tel.

2) Un pays auquel s’applique le présent alinéa est considéré comme un pays auquel s’étend la première partie aux fins des articles 154 à 156 (conditions d’application de la protection) jusqu’à ce que

a) soit édictée une ordonnance en Conseil en ce qui concerne ledit pays en vertu de l’article 159 (application de la première partie aux pays auxquels elle ne s’étend pas), ou

b) soit édictée une ordonnance en Conseil aux termes de laquelle le pays en question n’est plus considéré comme tel parce que les dispositions de la loi de 1956 ou, le cas échéant, de la loi de 1911, qui s’étendaient à lui en tant que partie intégrante de sa législation ont été abrogées ou modifiées.

3) Les ordonnances en Conseil prévues aux termes du présent alinéa sont édictées par voie de dispositions réglementaires susceptibles d’annulation en vertu d’une résolution de l’une ou l’autre des chambres du Parlement.

Eaux territoriales et plateau continental

38. L’article 161 de la présente loi (application de la première partie aux actes accomplis dans les eaux territoriales ou dans la zone du plateau continental du Royaume- Uni) n’est applicable à aucun acte accompli avant l’entrée en vigueur.

Navires, aéronefs et aéroglisseurs britanniques

39. L’article 162 (navires, aéronefs et aéroglisseurs britanniques) n’est applicable à aucun acte accompli avant l’entrée en vigueur.

Droit d’auteur de la Couronne

40.— 1) L’article 163 de la présente loi (dispositions générales en ce qui concerne le droit d’auteur de la Couronne) est applicable à une oeuvre existante si

a) l’article 39 de la loi de 1956 s’appliquait à cette oeuvre immédiatement avant l’entrée en vigueur, et

b) l’oeuvre ne fait pas partie de celles auxquelles s’applique l’article164, 165 ou 166 (droit d’auteur sur les lois, mesures et projets ou propositions de loi: voir les alinéas 42 et 43 ci-dessous).

2) L’article 163.1)b) (premier titulaire du droit d’auteur) déploie ses effets sous réserve de tout accord conclu avant l’entrée en vigueur en vertu de l’article 39.6) de la loi de 1956.

41.— 1) Les dispositions ci-dessous déploient leurs effets en ce qui concerne la durée du droit d’auteur sur des d’œuvres existantes auxquelles s’applique l’article 163 (droit d’auteur de la Couronne).

L’application à une oeuvre de telle ou telle disposition est fonction des faits existant immédiatement avant l’entrée en vigueur: les expressions utilisées dans le présent alinéa qui étaient définies aux fins de la loi de 1956 ont le même sens que dans ladite loi.

2) Le droit d’auteur sur les catégories d’œuvres ci-après continue d’exister jusqu’à la date à laquelle il aurait pris fin conformément à la loi de 1956

a) les d’œuvres littéraires, dramatiques ou musicales publiées, b) les d’œuvres artistiques, à l’exception des gravures ou des photographies. c) les gravures publiées, d) les photographies publiées et les photographies prises avant le 1er juin 1957. e) les enregistrements sonores publiés et les enregistrements sonores réalisés

avant le 1er juin 1957,

f) les films publiés et les films relevant de l’article 13.3)a) de la loi de 1956 (films enregistrés en vertu de textes législatifs antérieurs relatifs à l’enregistrement des films).

3) Le droit d’auteur sur des d’œuvres littéraires, dramatiques ou musicales non publiées continue d’exister jusqu’à

a) la date à laquelle le droit d’auteur prend fin conformément à l’article163.3) , ou

b) l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle les nouvelles dispositions sur le droit d’auteur entrent en vigueur,

la dernière date à échoir étant retenue.

a) les gravures non publiées, b) les photographies non publiées prises le 1er juin 1957 ou après cette date. 5) Le droit d’auteur sur un film ou un enregistrement sonore ne relevant pas du

sous-alinéa 2) ci-dessus continue d’exister jusqu’à l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle les nouvelles dispositions sur le droit d’auteur entrent en vigueur, sauf si le film ou l’enregistrement est publié avant la fin de ladite période, auquel cas le droit d’auteur expire 50 ans après la fin de l’année civile au cours de laquelle il a été publié.

42.— 1) L’article 164 (droit d’auteur sur les lois et mesures) s’applique aux lois existantes du Parlement et également aux mesures existantes du Synode général de l’Eglise d’Angleterre.

2) Dans ledit article, toute mention des mesures du Synode général de l’Eglise d’Angleterre doit être interprétée comme visant aussi les mesures de l’Assemblée de l’Eglise.

Droit d’auteur des Assemblées parlementaires

43.— 1) L’article 165 de la présente loi (dispositions générales relatives au droit d’auteur des Assemblées parlementaires) s’applique aux d’œuvres littéraires, dramatiques, musicales ou artistiques non publiées, mais ne s’applique pas aux d’œuvres existantes.

2) L’article 166 (droit d’auteur sur les projets ou propositions de loi) ne s’applique pas

a) à un projet ou une proposition de loi d’intérêt général déposé devant le Parlement et publié avant l’entrée en vigueur,

b) à un projet ou une proposition de loi d’intérêt local dont une copie a été déposée devant l’une ou l’autre des chambres avant l’entrée en vigueur, ou

c) à un projet ou une proposition de loi d’intérêt privé qui a été enregistré par la Chambre des Lords avant l’entrée en vigueur.

Droit d’auteur reconnu à certaines organisations internationales

44.— 1) Toute oeuvre sur laquelle il existait immédiatement avant l’entrée en vigueur un droit d’auteur en vertu de l’article 33 de la loi de 1956 est considérée comme remplissant les conditions énoncées à l’article 168.1); autrement, l’article 168 ne s’applique pas aux d’œuvres faites ou, le cas échéant, publiées avant l’entrée en vigueur.

2) Le droit d’auteur sur toute oeuvre de ce genre non publiée continue d’exister jusqu’à la date à laquelle il aurait pris fin conformément à la loi de 1956 ou l’expiration d’une période de 50 ans à compter de la fin de l’année civile au cours de laquelle les nouvelles dispositions sur le droit d’auteur entrent en vigueur, la première date à échoir étant retenue.

Signification de “publication”

45. L’article 175.3) (construction d’un édifice considéré comme équivalant à une publication) ne s’applique que lorsque la construction de l’édifice a débuté après l’entrée en vigueur.

Signification de l’expression “non autorisé”

46. Aux fins d’application de la définition figurant à l’article178(définitions annexes) de l’expression “non autorisé” en ce qui concerne les actes accomplis avant l’entrée en vigueur

a) l’alinéa a) s’applique en ce qui concerne les actes accomplis avant le 1er juin 1957 comme si la mention de l’autorisation du titulaire du droit d’auteur visait aussi son consentement ou son approbation;

b) l’alinéa b) s’applique à condition que soit supprimée la partie de la disposition commençant par les mots “ou au cas” et se terminant par les mots “ou par leurs ayants cause ou avec l’autorisation de ces derniers”; et

c) il n’est pas tenu compte de l’alinéa c).

DEUXIÈME ANNEXE

(article 189)

DROITS AFFÉRENTS AUX PRESTATIONS: ACTES AUTORISÉS

Dispositions liminaires

1.— 1) Les dispositions de la présente annexe précisent les actes qui peuvent être accomplis par rapport à une prestation ou un enregistrement malgré l’existence des droits conférés aux termes des dispositions de la deuxième partie; elles ont trait uniquement à la question des atteintes à ces droits et n’ont d’incidence sur aucun autre droit ou obligation imposant des restrictions quant à l’accomplissement des actes considérés.

2) Les dispositions de la présente annexe définissant les actes qui peuvent être accomplis sans porter atteinte aux droits conférés aux termes des dispositions de la deuxième partie n’ont aucune incidence sur la portée de ces droits.

3) Les dispositions de la présente annexe doivent être interprétées indépendamment les unes des autres, de sorte que le fait qu’un acte ne relève pas du champ d’application d’une disposition donnée ne signifie pas qu’il n’est pas prévu par une autre disposition.

Critique, comptes rendus et reportages d’actualité

2.— 1) Un acte loyal accompli à l’égard d’une interprétation ou exécution ou d’un enregistrement d’une oeuvre

a) à des fins de critique ou de compte rendu de l’interprétation ou exécution ou de l’enregistrement considérés, ou d’autres, ou

b) afin de rendre compte d’événements d’actualité ne porte en aucun cas atteinte aux droits conférés aux termes des dispositions de la deuxième partie.

2) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 30.

Communication fortuite d’une prestation ou d’un enregistrement

3.— 1) Ne porte pas atteinte aux droits conférés aux termes des dispositions de la deuxième partie au regard d’une prestation ou d’un enregistrement le fait que celle-ci ou celui-ci figure fortuitement dans un enregistrement sonore, un film, une émission de radiodiffusion ou un programme distribué par câble.

2) Ne porte pas non plus atteinte à ces droits un acte accompli par rapport à des copies ou exemplaires, ou la diffusion, la projection, la radiodiffusion ou la programmation dans un service de câblodistribution, de tout document qui, en vertu des dispositions du sous-alinéa 1), a pu être réalisé sans porter atteinte à ces droits.

3) Dans la mesure où ils consistent en de la musique ou en un texte parlé ou chanté avec de la musique, les prestations ou enregistrements ne sont pas considérés comme figurant fortuitement dans un enregistrement sonore, une émission de radiodiffusion ou un programme distribué par câble s’ils ont été délibérément repris dans ceux-ci.

4) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 31.

Actes accomplis à des fins didactiques ou en vue d’un examen

4.— 1) La reproduction d’un enregistrement d’une prestation dans le cadre d’activités didactiques ou de la préparation d’activités de cette nature ayant trait à la réalisation de films ou de bandes sonores de films ne porte pas atteinte aux droits conférés aux termes des dispositions de la deuxième partie si elle est réalisée par la personne qui dispense l’enseignement ou par celle qui le reçoit.

2) Ne portent pas atteinte aux droits conférés aux termes des dispositions de la deuxième partie

a) la reproduction d’un enregistrement d’une prestation en vue de l’élaboration de questions d’examen ou des réponses à y apporter, ou

b) un acte accompli en vue d’un examen à l’occasion de la communication des questions aux candidats.

3) Un enregistrement qui serait illicite s’il n’était réalisé en application des dispositions du présent alinéa et qui fait ensuite l’objet d’un acte d’exploitation est assimilé à un enregistrement illicite aux fins de cette exploitation et, si celle-ci porte atteinte à un droit conféré aux termes des dispositions de la deuxième partie, à tous autres égards par la suite.

A cette fin, on entend par “exploitation” la vente ou la location, l’offre en vente ou en location ou la présentation en vue de la vente ou de la location.

4) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 32.

Diffusion ou projection au sein d’un établissement d’enseignement d’un enregistrement sonore, d’un film, d’une émission de radiodiffusion ou d’un programme distribué par

câble

5.— 1) La diffusion ou la projection à des fins didactiques, au sein d’un établissement d’enseignement, devant un public constitué d’enseignants et d’élèves de l’établissement et d’autres personnes directement intéressées par les activités de l’établissement, d’un enregistrement sonore, d’un film, d’une émission de radiodiffusion ou d’un programme distribué par câble ne constitue pas une diffusion ou projection publique d’une prestation de nature à porter atteinte aux droits conférés aux termes des dispositions de la deuxième partie.

2) A cette fin, une personne n’est pas considérée comme directement intéressée par les activités d’un établissement d’enseignement du seul fait qu’elle est l’un des parents d’un élève de cet établissement.

3) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 34 et toute disposition adoptée en vertu de l’article174.2) en ce qui concerne l’application de cet article est également valable aux fins du présent alinéa.

Enregistrement par des établissements d’enseignement d’émissions de radiodiffusion et de programmes distribués par câble

6.— 1) Les établissements d’enseignement peuvent réaliser ou faire réaliser, aux fins de leurs activités, un enregistrement d’une émission de radiodiffusion ou d’un programme distribué par câble ou une copie de cet enregistrement sans porter atteinte à aucun des droits conférés aux termes des dispositions de la deuxième partie à l’égard de toute prestation ou de tout enregistrement compris dans l’émission ou le programme.

2) Un enregistrement qui serait illicite s’il n’était réalisé en application des dispositions du présent alinéa et qui fait ensuite l’objet d’un acte d’exploitation est assimilé à un enregistrement illicite aux fins de cette exploitation et, si celle-ci porte atteinte à un droit conféré aux termes des dispositions de la deuxième partie, à tous autres égards par la suite.

A cette fin, on entend par “exploitation” la vente ou la location, l’offre en vente ou en location ou la présentation en vue de la vente ou de la location.

3) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 35 et toute disposition adoptée en vertu de l’article174.2) en ce qui concerne l’application de cet article est également valable aux fins du présent alinéa.

Copie d’une oeuvre exigée en cas d’exportation

7.— 1) Si un article d’importance ou d’intérêt culturel ou historique ne peut être licitement exporté du Royaume-Uni qu’après qu’une copie en a été établie et déposée

auprès d’une bibliothèque ou d’un service d’archives approprié, l’établissement de cette copie ne porte atteinte à aucun droit conféré aux termes des dispositions de la deuxième partie.

2) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 44.

Procédures parlementaires et judiciaires

8.— 1) Aucun acte accompli aux fins d’une procédure parlementaire ou judiciaire ou en vue de rendre compte d’une telle procédure ne porte atteinte aux droits conférés aux termes des dispositions de la deuxième partie.

2) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 45.

Commissions royales et enquêtes légales

9.— 1) Aucun acte accompli aux fins de la procédure d’une commission royale ou d’une enquête légale ou en vue de rendre compte d’une telle procédure de caractère public ne porte atteinte aux droits conférés aux termes des dispositions de la deuxième partie.

2) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 46.

Archives publiques

10.— 1) Les documents versés aux archives publiques au sens de la loi de 1958 (Public Records Act 1958), de la loi de 1937 pour ce qui concerne l’Ecosse (Public Records (Scotland) Act 1937) et de la loi de 1923 pour ce qui concerne l’Irlande du Nord (Public Records Act (Northern Ireland) 1923) qui sont mis à la disposition du public pour consultation en application de la loi considérée peuvent être reproduits, et des copies peuvent en être remises à quiconque, par tout fonctionnaire désigné en vertu de cette même loi ou avec son autorisation, sans qu’il soit porté atteinte à aucun droit conféré aux termes des dispositions de la deuxième partie.

2) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 49.

Actes accomplis en vertu de la loi

11.— 1) Lorsqu’un acte donné est expressément autorisé aux termes d’une loi votée par le Parlement à quelque date que ce soit, l’accomplissement de cet acte ne porte pas atteinte aux droits conférés aux termes des dispositions de la deuxième partie, sauf disposition contraire de ladite loi.

2) Les dispositions du sous-alinéa 1) sont applicables au regard d’un texte relevant de la législation de l’Irlande du Nord au même titre qu’elles le sont au regard d’une loi du Parlement.

3) Aucune disposition du présent alinéa ne doit être interprétée comme excluant un moyen de défense légal prévu par ailleurs aux termes d’un texte en vigueur ou en vertu d’un tel texte.

4) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 50.

Transfert de copies d’œuvres sous forme électronique

12.— 1) Le présent alinéa est applicable lorsqu’un enregistrement d’une prestation sous forme électronique a été acheté à des conditions qui, expressément ou implicitement ou par l’effet de la loi, permettent à l’acquéreur de faire d’autres enregistrements à l’occasion de l’utilisation de l’enregistrement initial.

2) S’il n’existe aucune disposition expresse

a) interdisant le transfert de l’enregistrement par l’acquéreur, imposant des obligations subsistant après un transfert, interdisant la cession de toute autorisation ou mettant fin à toute autorisation de transfert, ou

b) précisant les conditions auxquelles le bénéficiaire d’un transfert peut lui- même accomplir les actes que l’acquéreur était autorisé à accomplir, tout acte que l’acquéreur était autorisé à accomplir peut aussi l’être par le bénéficiaire d’un transfert sans qu’il y ait atteinte aux droits conférés aux termes des dispositions de la présente partie; toutefois, tout enregistrement réalisé par l’acquéreur qui n’est pas également transféré est assimilé à tous égards à un enregistrement illicite après le transfert.

3) Les mêmes dispositions sont applicables lorsque l’enregistrement initialement acquis n’est plus utilisable et que le transfert porte sur une copie de substitution.

4) Les dispositions précédentes sont également applicables en cas de transfert ultérieur, les mentions de l’acquéreur, au sous-alinéa 2), devant alors être interprétées comme désignant le bénéficiaire de tout transfert ultérieur.

5) Le présent alinéa n’est pas applicable à un enregistrement acheté avant l’entrée en vigueur des dispositions de la deuxième partie.

6) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 56.

Utilisation d’enregistrements de textes parlés dans certains cas

13.— 1) Lorsque la lecture ou la récitation d’une oeuvre littéraire est enregistrée en vue

a) d’un compte rendu d’événements d’actualité, ou b) de la radiodiffusion ou de la programmation dans un service de

câblodistribution de la totalité ou d’une partie de cette lecture ou récitation, l’utilisation de l’enregistrement (ou la reproduction de l’enregistrement et l’utilisation de la copie) aux fins précitées ne porte pas atteinte aux droits conférés aux termes des dispositions de la deuxième partie si les conditions énoncées ci-après sont réunies.

2) Les conditions sont les suivantes

a) l’enregistrement est effectué directement à partir de la lecture ou de la récitation et n’est pas repris d’un enregistrement antérieur ni d’une émission de radiodiffusion ou d’un programme distribué par câble;

b) la réalisation de l’enregistrement n’a pas été interdite par la personne ayant lu ou récité l’oeuvre ou en son nom;

c) l’utilisation faite de l’enregistrement ne relève pas d’une interdiction formulée par la personne précitée ou en son nom avant la réalisation de l’enregistrement; et

d) l’enregistrement est utilisé par la personne qui est légitimement en possession de celui-ci, ou avec son autorisation.

3) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 58.

Enregistrements de chants folkloriques

14.— 1) L’exécution d’une chanson peut faire l’objet d’un enregistrement destiné à être conservé dans les archives d’un organisme désigné sans qu’il soit porté atteinte à aucun des droits conférés aux termes des dispositions de la deuxième partie, si les conditions énoncées au sous-alinéa 2) ci-après sont réunies.

2) Les conditions sont les suivantes

a) les paroles n’ont pas été publiées et l’identité de leur auteur est inconnue au moment où est fait l’enregistrement.

b) la réalisation de l’enregistrement ne porte nullement atteinte au droit d’auteur, et

c) elle n’a été interdite par aucun des artistes interprètes ou exécutants. 3) Des copies d’un enregistrement réalisé en application des dispositions du sous-

alinéa 1) et conservé dans les archives d’un organisme désigné peuvent, si les conditions prescrites sont réunies. être établies et fournies par l’archiviste sans qu’il soit porté atteinte à aucun des droits conférés aux termes des dispositions de la deuxième partie.

4) Dans le présent alinéa, on entend par

“organisme désigné” un organisme désigné aux fins de l’article61 , et

“conditions prescrites” les conditions prescrites aux fins de l’alinéa 3) de ce même article;

les autres expressions employées dans le présent alinéa ont le même sens que dans l’article précité.

Diffusion d’enregistrements sonores pour les besoins d’un club, d’une association, etc.

15.— 1) Ne porte atteinte à aucun droit conféré aux termes des dispositions de la deuxième partie le fait de diffuser un enregistrement sonore dans le cadre des activités

d’un club, d’une association ou d’une autre organisation, ou au profit de ceux-ci, si les conditions énoncées ci-après sont réunies.

2) Les conditions sont les suivantes

b) le produit de tout droit d’entrée dans le lieu où l’enregistrement doit être entendu est affecté exclusivement aux buts de l’organisation.

3) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 67.

Enregistrement accessoire aux fins d’une émission de radiodiffusion ou d’un programme distribué par câble

16.— 1) Une personne qui a l’intention de radiodiffuser un enregistrement d’une prestation, ou de programmer un enregistrement d’une prestation dans un service de câblodistribution, dans des conditions telles qu’il n’est pas porté atteinte aux droits conférés aux termes des dispositions de la deuxième partie, est réputée avoir autorisé, aux fins de cette même partie, la réalisation d’un autre enregistrement pour les besoins de l’émission de radiodiffusion ou du programme distribué par câble.

2) Cette autorisation est subordonnée à la condition que le nouvel enregistrement

a) ne soit utilisé dans aucun autre but, et b) soit détruit dans les 28 jours suivant sa première utilisation aux fins de la

radiodiffusion de la prestation ou de sa programmation dans un service de câblodistribution.

3) Un enregistrement fait en application du présent alinéa est considéré comme un enregistrement illicite

a) aux fins de toute utilisation en violation des dispositions du sous-alinéa 2)a), et

b) en toute hypothèse lorsque ces dispositions ou celles du sous-alinéa 2)b) n’ont pas été respectées.

4) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 68.

Enregistrements aux fins de la supervision et du contrôle d’émissions de radiodiffusion et de programmes distribués par câble

17.— 1) La British Broadcasting Corporation ne porte pas atteinte aux droits conférés aux termes des dispositions de la deuxième partie lorsqu’elle fait ou utilise, afin d’assurer la supervision et le contrôle des programmes qu’elle diffuse, des enregistrements de ces programmes.

2) Ne porte pas atteinte aux droits conférés aux termes des dispositions de la deuxième partie

b) un acte accompli en vertu ou en application des clauses d’un contrat conclu entre un fournisseur de programmes et l’Authority conformément à l’article 21 de ladite loi.

3) Ne porte pas atteinte aux droits conférés aux termes des dispositions de la deuxième partie

a) la réalisation, par la Cable Authority ou avec son autorisation, ou l’utilisation par ladite Authority, en vue de la supervision et du contrôle de programmes distribués dans le cadre de services autorisés en vertu de la première partie de la loi de 1984 sur la distribution par câble et la radiodiffusion, d’enregistrements de ces programmes, ni

b) un acte accompli en vertu ou en application i) d’une notification adressée ou d’une instruction donnée en vertu de

l’article 16 de la loi de 1984 sur la distribution par câble et la radiodiffusion (pouvoir de la Cable Authority d’exiger la production d’enregistrements), ou

ii) d’une condition définie dans une licence en vertu de l’article35 de ladite loi (obligation de l’Authority de veiller à ce que des enregistrements soient disponibles à certaines fins).

4) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 69.

Projection ou diffusion publique gratuite d’une émission de radiodiffusion ou d’un programme distribué par câble

18.— 1) La projection ou la diffusion publique d’une émission de radiodiffusion ou d’un programme distribué par câble à l’intention d’un public n’ayant pas payé de droit d’entrée dans le lieu où l’émission ou le programme doit être vu ou entendu ne porte atteinte à aucun droit conféré aux termes des dispositions de la deuxième partie au regard d’une prestation ou d’un enregistrement compris dans

a) l’émission de radiodiffusion ou le programme distribué par câble, ou b) tout enregistrement sonore ou film qui est diffusé ou projeté en public par

réception de l’émission ou du programme.

2) Le public est considéré comme ayant payé un droit d’entrée dans un endroit donné

a) si un droit d’entrée a dû être versé pour avoir accès à un lieu dont cet endroit fait partie: ou

b) si des produits ou services sont fournis à cet endroit (ou dans un lieu dont celui-ci fait partie)

i) à des prix essentiellement imputables à la possibilité qui est donnée de voir ou d’entendre l’émission ou le programme, ou

ii) à des prix supérieurs à ceux qui sont habituellement pratiqués dans le lieu considéré, cette majoration étant en partie imputable à cette possibilité.

3) Ne sont pas considérées comme ayant payé un droit d’entrée

a) les personnes admises dans le lieu en question en qualité de résidents ou de pensionnaires;

4) Lorsque la réalisation de l’émission ou l’inclusion du programme dans un service de câblodistribution a porté atteinte aux droits conférés aux termes des dispositions de la deuxième partie au regard d’une prestation ou d’un enregistrement, le fait que celui-ci ait été entendu ou vu en public par réception de l’émission ou du programme est pris en compte pour l’appréciation du montant des dommages-intérêts exigibles au titre de l’acte incriminé.

5) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 72.

Réception et retransmission d’une émission de radiodiffusion dans un service de câblodistribution

19.— 1) Les dispositions du présent alinéa sont applicables lorsqu’une émission faite à partir d’un lieu situé au Royaume-Uni est, par voie de réception et de retransmission immédiate, programmée dans un service de câblodistribution.

2) Il n’y a pas atteinte aux droits conférés aux termes des dispositions de la deuxième partie au regard d’une prestation ou d’un enregistrement compris dans l’émission

a) si la programmation répond à une obligation découlant de l’article13.1) de la loi de 1984 sur la distribution par câble et la radiodiffusion (obligation de la Cable Authority de veiller à ce que certains programmes figurent dans le service de câblodistribution), ou

b) si et dans la mesure où cette émission est destinée à être captée dans la zone dans laquelle est assuré le service de câblodistribution;

toutefois, lorsque la réalisation de l’émission a porté atteinte à ces droits, le fait que l’émission ait été retransmise par programmation dans un service de câblodistribution est pris en compte pour l’appréciation du montant des dommages-intérêts exigibles au titre de l’acte incriminé.

3) Les expressions employées dans le présent alinéa ont le même sens qu’à l’article 73.

Fourniture de copies sous-titrées d’émissions de radiodiffusion ou de programmes distribués par câble

20.— 1) Un organisme désigné peut, afin de mettre à la disposition des sourds ou malentendants ou des personnes souffrant d’un autre handicap physique ou intellectuel des copies sous-titrées ou modifiées d’une autre manière pour répondre à leurs besoins particuliers, faire des enregistrements d’émissions de télévision ou de programmes distribués par câble sans porter atteinte à aucun droit conféré aux termes des dispositions de la deuxième partie au regard d’une prestation ou d’un enregistrement compris dans l’émission ou le programme.

2) Dans le présent alinéa, on entend par “organisme désigné” un organisme désigné aux fins de l’article 74 et les autres expressions employées dans le présent alinéa ont le même sens que dans cet article.

Enregistrement d’émissions de radiodiffusion ou de programmes distribués par câble à des fins d’archivage

21.— 1) Un enregistrement d’une émission de radiodiffusion ou d’un programme distribué par câble relevant d’une catégorie déterminée, ou une copie d’un enregistrement de cette nature. peut être réalisé en vue d’être conservé dans les archives d’un organisme désigné sans que cet acte porte atteinte à aucun droit conféré aux termes des dispositions de la deuxième partie au regard d’une prestation ou d’un enregistrement compris dans l’émission ou dans le programme.

2) Dans le présent alinéa, on entend par “catégorie déterminée” et “organisme désigné” une catégorie déterminée ou un organisme désigné aux fins de l’article75 et les autres expressions employées dans le présent alinéa ont le même sens que dans cet article.

…*

SIXIÈME ANNEXE

(article 301)

DISPOSITIONS EN FAVEUR DE L’HôPITAL DES ENFANTS MALADES

Interprétation

1.— 1) Dans la présente annexe, on entend par

“hôpital” l’Hôpital des enfants malades, Great Ormond Street, Londres.

* Les parties concernant les dessins et modèles et les brevets sont publiées dans La Propriété industrielle, encarts Lois et traités.

“administrateurs” les administrateurs spécialement désignés pour l’hôpital en vertu de la loi de 1977 sur le service national de la santé; et

“oeuvre” la pièce “Peter Pan” de Sir James Matthew Barrie.

2) Les expressions employées dans la présente annexe qui sont définies aux fins de la première partie de la loi (droit d’auteur) ont le même sens que dans cette dernière.

Droit à une redevance

2.— 1) Les administrateurs ont droit, sous réserve des dispositions suivantes de la présente annexe, à une redevance au titre de toute représentation ou exécution publique, publication commerciale, radiodiffusion ou programmation dans un service de câblodistribution de la totalité ou d’une partie importante de l’oeuvre ou d’une adaptation de celle-ci.

2) Lorsque les administrateurs ont ou auraient droit à une redevance, une autre forme de rémunération peut être convenue.

Exceptions

3. Aucune redevance n’est exigible au titre de

a) tout acte qui, immédiatement avant l’expiration du droit d’auteur sur l’oeuvre, le 31 décembre 1987, aurait pu être licitement accompli avec l’autorisation, ou avec une nouvelle autorisation, des administrateurs en leur qualité de titulaires du droit d’auteur; ou

b) tout acte qui, si l’oeuvre était toujours protégée, pourrait, en vertu de toute disposition du chapitre III de la première partie de la présente loi (actes autorisés malgré l’existence d’un droit d’auteur), être accompli sans porter atteinte au droit d’auteur.

Réserve

4. Aucune redevance n’est exigible au regard d’un acte accompli en application de dispositions prises avant l’adoption de la présente loi.

Procédure de détermination du montant à acquitter

5.— 1) A défaut d’accord quant au montant de la redevance ou autre rémunération à acquitter, une requête peut être adressée au tribunal du droit d’auteur, qui examine la question et se prononce de la façon qu’il estime équitable en l’espèce.

2) Le tribunal peut ensuite être saisi d’une requête tendant à lui faire modifier sa décision et, après avoir étudié la question, se prononce en confirmant ou en modifiant la décision initiale, selon ce qui lui paraît équitable en l’espèce.

3) Une requête tendant à obtenir la modification d’une décision ne peut, sauf autorisation spéciale du tribunal, être présentée avant l’expiration d’un délai de 12 mois à compter de la date de la décision initiale ou de la décision rendue à la suite d’une précédente requête en modification.

4) Une décision de modification prend effet dès la date à laquelle elle est rendue ou à une date ultérieure fixée par le tribunal.

Fonds fiduciaires

6. Les administrateurs sont dépositaires pour le compte de l’hôpital, des montants perçus en vertu des dispositions de la présente annexe, déduction faite de tous frais pertinents.

Exercice du droit au seul profit de l’hôpital

7.— 1) Le droit reconnu aux administrateurs en vertu des dispositions de la présente annexe ne peut être cédé et s’éteint si les administrateurs entendent le céder ou l’affecter en garantie.

2) Le droit ne peut faire l’objet d’une ordonnance en vertu des dispositions de l’article 92 de la loi de 1977 sur le service national de la santé (transferts de propriété fiduciaire par ordonnance du ministre) et s’éteint si l’hôpital cesse d’avoir une identité distincte ou cesse d’avoir pour but de s’occuper des enfants malades.

3) Les prérogatives reconnues à Sa Majesté, au tribunal (au sens de la loi de 1960 sur les d’œuvres de bienfaisance) ou à toute autre personne en ce qui concerne la modification des fondations créées dans un but de bienfaisance ne peuvent être exercées à l’égard de la fondation créée en vertu des dispositions de la présente annexe.

SEPTIÈME ANNEXE

(article 303.1))

MODIFICATIONS CONSÉCUTIVES À LA LOI: GÉNÉRALITÉS

British Mercantile Marine Uniform Act 1919 (c.62)

(Loi de 1919 sur l’uniforme de la marine marchande britannique)

1. L’article 2 de la loi de 1919 sur l’uniforme de la marine marchande britannique (droit d’auteur sur des signes distinctifs d’uniforme) est remplacé par le texte suivant:

“Droit afférent aux dessins ou modèles enregistrés de signes distinctifs d’uniforme

2. Le droit reconnu au ministre sur tout dessin ou modèle faisant partie de l’uniforme de la marine marchande britannique qui est enregistré en vertu de la loi de 1949 sur les dessins et modèles enregistrés n’est pas limité à la durée prévue à l’article 8 de cette loi mais reste valable tant que le dessin ou modèle demeure enregistré.”

Chartered Associations (Protection of Names and Uniforms) Act 1926 (c.26)

(Loi de 1926 sur les associations agréées (protection des noms et uniformes))

2. A l’article 1.5) de la loi de 1926 sur les associations agréées (protection des noms et uniformes) les mots “le droit d’auteur y relatif” sont remplacés par “le droit afférent au dessin ou modèle enregistré”.

Patents, Designs, Copyright and Trade Marks (Emergency) Act 1939 (c.107)

(Loi de 1939 sur les brevets, les dessins et modèles, le droit d’auteur et les marques (état d’urgence))

3.— 1) La loi de 1939 sur les brevets, les dessins et modèles, le droit d’auteur et les marques (état d’urgence) est modifiée comme suit.

2) A l’article premier (effet des licences lorsque le titulaire est l’ennemi ou un sujet ennemi)

a) à l’alinéa 1), les mots “ou droit de modèle” sont insérés après “un droit d’auteur” et “le droit d’auteur”;

b) à l’alinéa 2), les mots “ou droit de modèle” sont insérés après “le droit d’auteur” et les mots “ou droit d’auteur” sont remplacés par “, droit d’auteur ou droit de modèle”.

3) A l’article 2 (pouvoir du contrôleur d’accorder des licences)

a) à l’alinéa 1), les mots “ou droit de modèle” sont insérés après “un droit d’auteur”, “le droit d’auteur” (à deux reprises) et “le droit d’auteur en question” et les mots “ou droit d’auteur” sont remplacés (à deux reprises) par “, droit d’auteur ou droit de modèle”:

b) aux alinéas 2) et 3), les mots “, ou droit d’auteur” sont remplacés par “, droit d’auteur ou droit de modèle”:

c) à l’alinéa 4) et à l’alinéa 5) (à deux reprises), les mots “ou droit de modèle” sont insérés après “le droit d’auteur”:

d) à l’alinéa 8)c), les mots “ou l’oeuvre protégée” sont remplacés par “l’oeuvre ou le modèle protégé”.

4) A l’article 5 (conséquence de la guerre sur les accords internationaux)

a) à l’alinéa 1), les mots “article vingt-neuf de la loi de 1911 sur le droit d’auteur” sont remplacés par “article 159 ou 256 de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets (pays jouissant de la réciprocité en matière de protection pour ce qui concerne le droit d’auteur ou le droit de modèle)”:

b) à l’alinéa 2), les mots “ou droit de modèle” après “droit d’auteur” (à quatre reprises) sont insérés et les mots “la loi de 1911 sur le droit d’auteur” sont remplacés (à deux reprises) par “la première ou la troisième partie de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets”.

5) A l’article 10.1) (interprétation), la définition de “droit d’auteur” est supprimée et les définitions de “dessin ou modèle”, “invention”, “brevet” et “titulaire du brevet” sont remplacées par le texte suivant:

“ ‘dessin ou modèle’ a, par rapport à un dessin ou modèle enregistré, le même sens que dans la loi de 1949 sur les dessins et modèles enregistrés et, par rapport à un droit de modèle, le même sens que dans la troisième partie de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets;

‘invention’ et ‘brevet’ ont le même sens que dans la loi de 1977 sur les brevets.”

Crown Proceedings Act 1947 (c.44)

(Loi de 1947 sur les procédures de la Couronne)

4.— 1) Dans la loi de 1947 sur les procédures de la Couronne, l’article3 (dispositions concernant la propriété industrielle) est remplacé par le texte suivant:

“Atteinte aux droits de propriété intellectuelle

3.— 1) Des poursuites civiles peuvent être intentées contre la Couronne au titre d’une atteinte portée par l’un de ses fonctionnaires ou employés autorisés

a) à un brevet, b) à une marque de produits ou à une marque de services enregistrée, c) au droit afférent à un dessin ou modèle enregistré. d) à un droit de modèle, ou e) au droit d’auteur:

toutefois, aucune procédure ne peut être intentée contre la Couronne en vertu de la présente loi au titre d’une atteinte à l’un de ces droits si ce n’est en vertu des dispositions du présent alinéa.

2) Aucune disposition du présent article ni aucune autre disposition de la présente loi ne doit être interprétée comme ayant une incidence sur

a) les droits reconnus à un ministère en vertu de l’article 55 de la loi de 1977 sur les brevets, des dispositions de la première annexe de la loi de 1949 sur les dessins et modèles enregistrés ou de l’article 240 de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets (exploitation ou usage de brevets, de dessins ou de modèles par la Couronne), ou

b) les droits reconnus au ministre en vertu de l’article 22 de la loi de 1977 sur les brevets ou de l’article 5 de la loi de 1949 sur les dessins et modèles enregistrés (informations préjudiciables à la défense ou à la sécurité publique).”

2) Pour l’application des dispositions du sous-alinéa 1) à l’Irlande du Nord,

a) la loi de 1947 sur les procédures de la Couronne s’entend de la loi telle qu’elle est applicable à la représentation de la Couronne par le Gouvernement de Sa Majesté en Irlande du Nord ainsi qu’à la représentation de la Couronne par le Gouvernement de Sa Majesté au Royaume-Uni, et

b) dans le nouvel article 3, tel qu’il est applicable au regard de la représentation de la Couronne par le Gouvernement de Sa Majesté en Irlande du Nord, l’alinéa 2)b) est supprimé.

Patents Act 1949 (c.87)

(Loi de 1949 sur les brevets)

5. A l’article 47 de la loi de 1949 sur les brevets (droits des tiers en ce qui concerne l’exploitation de brevets par la Couronne). dans la dernière partie de l’alinéa 1) (qui a trait à l’utilisation de modèles ou de documents), les mots “ou d’un droit de modèle” sont insérés après “droit d’auteur”.

Public Libraries (Scotland) Act 1955 (c.27)

(Loi de 1955 sur les bibliothèques publiques (Ecosse))

6. A l’article 4 de la loi de 1955 sur les bibliothèques publiques (Ecosse) (extension du droit de prêt des bibliothèques publiques), la disposition actuelle devient l’alinéa 1) et le texte suivant est ajouté:

“2) Les dispositions de la première partie de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets (droit d’auteur) relatives à la location de copies d’enregistrements sonores, de films et de programmes d’ordinateur sont applicables à tout prêt de copies d’œuvres de cette nature par l’autorité légalement responsable d’une bibliothèque, que ce service soit ou non rendu à titre onéreux.”

London County Council (General Powers) Act 1958 (c.xxi)

(Loi de 1958 sur le Conseil du comté de Londres (pouvoirs généraux))

7. A l’article 36 de la loi de 1958 sur le Conseil du comté de Londres (pouvoirs généraux) (pouvoir concernant les bibliothèques: fourniture et entretien d’objets autres que des livres) l’alinéa 5) est remplacé par le texte suivant:

“5) Aucune disposition du présent article ne doit être interprétée comme autorisant une atteinte au droit d’auteur.”

Public Libraries and Museums Act 1964 (c.75)

(Loi de 1964 sur les bibliothèques publiques et les musées)

8. A l’article 8 de la loi de 1964 sur les bibliothèques publiques et les musées (restrictions touchant à la rémunération des services fournis par les bibliothèques), le texte suivant est ajouté après l’alinéa 5):

“6) Les dispositions de la première partie de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets (droit d’auteur) relatives à la location de copies d’enregistrements sonores, de films et de programmes d’ordinateur sont applicables à tout prêt de copies d’œuvres de cette nature par l’autorité responsable d’une bibliothèque, que ce service soit ou non rendu à titre onéreux.”

Marine, &c., Broadcasting (Offences) Act 1967 (c.41)

(Loi de 1967 sur la radiodiffusion en mer, etc. (délits))

9. A l’article 5 de la loi de 1967 sur la radiodiffusion en mer, etc. (délits) (fourniture de matériel de radiodiffusion destiné à des stations de radio pirates)

a) à l’alinéa 3)a), le membre de phrase commençant par “film cinématographique” et finissant par “dans l’enregistrement” est remplacé par “film ou enregistrement sonore afin qu’une émission de radiodiffusion dans laquelle il figure”; et

b) à l’alinéa 6) toute la fin du texte à partir de “et les mentions” est remplacée par “et ‘film’, ‘enregistrement sonore’, ‘oeuvre littéraire. dramatique ou musicale’ et ‘oeuvre artistique’ ont le même sens que dans la première partie de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets (droit d’auteur)”.

Medicines Act 1968 (c.67)

(Loi de 1968 sur les substances pharmaceutiques)

10.— 1) L’article 92 de la loi de 1968 sur les substances pharmaceutiques (champ d’application des dispositions restreignant la promotion des ventes de substances médicamenteuses) est modifié comme suit.

2) A l’alinéa 1) (signification du terme “publicité”), le membre de phrase commençant par “ou par l’exposition” et finissant par “service” est remplacé par “ou au moyen d’une photographie, d’un film, d’un enregistrement sonore, d’une émission de radiodiffusion ou d’un programme distribué par câble,”.

3) A l’alinéa 2) (exception concernant les textes parlés)

a) au sous-alinéa a), le membre de phrase commençant par “ou incorporé” et finissant par “film” est supprimé; et

b) au sous-alinéa b), toute la fin du texte à partir de “au moyen de” est remplacée par “ou programmé dans un service de câblodistribution”.

4) L’alinéa 6) est remplacé par le texte suivant:

“6) Dans le présent article, les termes ‘film’, ‘enregistrement sonore’, ‘émission de radiodiffusion’, ‘programme distribué par câble,’ ‘service de câblodistribution’ et les expressions connexes ont le même sens que dans la première partie de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets (droit d’auteur).”

Post Office Act 1969 (c.48)

(Loi de 1969 sur les postes)

11. Dans la dixième annexe de la loi de 1969 sur les postes (dispositions transitoires particulières relatives à l’exploitation de brevets et à l’usage de dessins et modèles enregistrés), dans la dernière partie des alinéas 8.1) et 18.1) (qui ont trait à l’utilisation de modèles et de documents), les mots “ou droit de modèle” sont insérés après “droit d’auteur”.

Merchant Shipping Act 1970 (c.36)

(Loi de 1970 sur la marine marchande)

12. A l’article 87 de la loi de 1970 sur la marine marchande (uniforme de la marine marchande). l’alinéa 4) est remplacé par le texte suivant:

“4) Lorsqu’un dessin ou modèle faisant partie de l’uniforme de la marine marchande a été enregistré en vertu de la loi de 1949 sur les dessins et modèles enregistrés et que le ministre est propriétaire du dessin ou modèle, son droit sur ce dessin ou modèle n’est pas limité à durée prévue à l’article 8) de ladite loi mais reste valable tant que le dessin ou modèle demeure enregistré.”

Taxes Management Act 1970 (c.9)

(Loi d’administration fiscale de 1970)

13. A l’article 16 de la loi d’administration fiscale de 1970 (déclarations à effectuer en ce qui concerne certains versements)

a) à l’alinéa 1)c), et b) à l’alinéa 2)b),

les mots “ou droit de prêt public” sont remplacés par”. droit de prêt public, droit afférent à un dessin ou modèle enregistré ou droit de modèle”.

Tribunals and Inquiries Act 1971 (c.62)

(Loi de 1971 sur les tribunaux et enquêtes)

14. Dans la première partie de la première annexe de la loi de 1971 sur les tribunaux et enquêtes (tribunaux placés sous la supervision directe du Conseil des tribunaux), la rubrique insérée aux termes de la loi de 1984 sur la protection des données est renumérotée “5B” et précédée de la rubrique suivante:

“Droit d’auteur 5A. Le tribunal du droit d’auteur”.

Fair Trading Act 1973 (c.41)

(Loi de 1973 sur les pratiques commerciales loyales)

15. Dans la quatrième annexe de la loi de 1973 sur les pratiques commerciales loyales (services exclus). l’alinéa 10(services des agents de brevets) est remplacé par le texte suivant:

“10. Les services des agents de brevets agréés (au sens des dispositions de la cinquième partie de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets) intervenant ès qualités.”:

en outre, à l’alinéa 10A (services des mandataires en brevets européens). les mots “article 84.7) de la loi de 1977 sur les brevets” sont remplacés par “cinquième partie de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets”.

House of Commons Disqualification Act 1975 (c.24)

(Loi de 1975 sur les motifs d’inéligibilité à la Chambre des communes)

16. Dans la deuxième partie de la première annexe de la loi de 1975 sur les motifs d’inéligibilité à la Chambre des communes (organismes dont aucun membre n’est éligible), les mots “le tribunal du droit d’auteur” sont insérés à l’endroit approprié.

Northern Ireland Assembly Disqualification Act 1975 (c.25)

(Loi de 1975 sur les motifs d’inéligibilité à l’Assemblée d’Irlande du Nord)

17. Dans la deuxième partie de la première annexe de la loi de 1975 sur les motifs d’inéligibilité à l’Assemblée d’Irlande du Nord (organismes dont aucun membre n’est éligible). les mots “le tribunal du droit d’auteur” sont insérés à l’endroit approprié.

Restrictive Trade Practices Act 1976 (c.34)

(Loi de 1976 sur les pratiques commerciales restrictives)

18.— 1) La loi de 1976 sur les pratiques commerciales restrictives est modifiée comme suit.

2) Dans la première annexe (services exclus) l’alinéa 10 (services des agents de brevets) est remplacé par le texte suivant:

en outre, à l’alinéa 10A (services des mandataires en brevets européens), les mots “article 84.7) de la loi de 1977 sur les brevets” sont remplacés par “cinquième partie de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets”.

3) Dans la troisième annexe (accords exclus), le texte suivant est inséré après l’alinéa 5A:

“Design right

(Droit de modèle)

5B.— 1) La présente loi n’est pas applicable à

a) une licence accordée par le titulaire d’un droit de modèle ou le titulaire d’une licence y relative,

b) une cession d’un droit de modèle, ou c) un accord concernant cette licence ou cette cession,

si la licence, la cession ou l’accord en question ne peut faire l’objet d’aucune restriction au sens de l’article 6.1) ci-dessus, ou n’est assortie d’aucune clause concernant la communication de renseignements au sens de l’article 7.1) ci- dessus, sauf à l’égard d’articles fabriqués d’après le modèle, sous réserve toutefois des dispositions suivantes.

2) Les dispositions du sous-alinéa 1) n’excluent pas un accord de mise en commun d’un modèle ni d’une licence délivrées ou une cession opérée (directement ou indirectement) en vertu d’un tel accord.

3) Dans le présent alinéa, on entend par ‘accord de mise en commun d’un modèle’ un accord

a) auquel sont parties, exclusivement ou parmi d’autres, au moins trois personnes (les “parties principales”) détenant chacune un intérêt afférent à un ou plusieurs droits de modèle, et

b) en vertu duquel chaque partie principale convient, par rapport à chaque droit de modèle à l’égard duquel elle a ou peut acquérir, pendant la durée de validité de l’accord, un intérêt de concéder elle-même (directement ou indirectement) un intérêt à l’une ou plusieurs des autres parties principales, ou à l’une ou plusieurs de ces parties et à d’autres personnes.

4) Dans le présent alinéa

‘assignment’ (cession), en Ecosse, signifie ‘assignation’; et ‘intérêt’ désigne un intérêt en tant que titulaire du droit de modèle ou bénéficiaire

d’une licence y relative.

5) Les dispositions du présent alinéa sont applicables à un intérêt détenu par plusieurs personnes ou concédé à plusieurs personnes conjointement, au même titre que s’il s’agissait d’une seule et même personne.

6) Dans le présent alinéa, un intérêt est réputé être concédé indirectement lorsqu’il est concédé à un tiers afin de permettre à ce dernier de le concéder à la personne intéressée.”

Resale Prices Act 1976 (c.53)

(Loi de 1976 sur les prix de revente)

19. A l’article 10.4) de la loi de 1976 sur les prix de revente (articles brevetés: articles assimilés), au sous-alinéa a), les mots “par un droit de modèle ou” sont insérés après “protégés”.

Patents Act 1977 (c.37)

(Loi de 1977 sur les brevets)

20. A l’article 57 de la loi de 1977 sur les brevets (droits des ers en ce qui concerne l’exploitation de brevets par la Couronne). à la fin de l’alinéa 1) (qui a trait à l’usage de modèles ou de documents), les mots “ou d’un droit de modèle” sont insérés après “droit d’auteur”.

21. A l’article 105 de la loi de 1977 sur les brevets (privilège des communications, dans le cadre des procédures en matière de brevets, en Ecosse), les mots “au sens de l’article 104” sont supprimés, le texte existant devient l’alinéa 1) et le texte suivant est ajouté:

“2) Dans le présent article

“procédures en matière de brevets” s’entend de procédures contradictoires ou non, intentées en vertu de la présente loi ou de l’une des conventions pertinentes devant le tribunal, le comptroller ou le tribunal “conventionnel” pertinent et portant sur des demandes de brevet; et

les “conventions pertinentes” s’entend de la Convention sur le brevet européen, de la Convention sur le brevet communautaire et du Traité de coopération en matière de brevets.”

22. A l’article 123.7) de la loi de 1977 sur les brevets (publication. par le comptroller, de rapports sur les affaires relatives aux brevets)

a) les mots “et aux dessins ou modèles enregistrés” sont remplacés par “aux dessins ou modèles enregistrés ou à un droit de modèle”,

b) les mots “et au droit d’auteur” sont remplacés par”, au droit d’auteur et à un droit de modèle”.

23. A l’article 130.1) de la loi de 1977 sur les brevets (interprétation). dans la définition du “tribunal”, le sous-alinéa a) est remplacé par le texte suivant:

“a) pour l’Angleterre et le Pays de Galles, la Haute Cour ou tout tribunal de comté ayant compétence en matière de brevets en vertu d’une ordonnance prise en application de l’article 287 de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets;”.

Unfair Contract Terms Act 1977 (c.50)

(Loi de 1977 sur les conditions contractuelles déloyales)

24. A l’alinéa 1 de la première annexe de la loi de 1977 sur les conditions contractuelles déloyales (champ d’application des dispositions principales: contrats exclus). à l’alinéa c) (contrats relatifs à l’octroi ou au transfert d’un droit de propriété intellectuelle), les mois “ou droit de modèle” sont insérés après “droit d’auteur”.

Judicature (Northern Ireland) Act 1978 (c.23)

(Loi de 1978 sur l’organisation judiciaire (Irlande du Nord))

25. A l’article 94A de la loi de 1978 sur l’organisation judiciaire (Irlande du Nord) (suppression de l’exception du témoignage contre soi-même dans certaines procédures relatives à la propriété intellectuelle), à l’alinéa 5) (signification des termes “propriété intellectuelle”), les mots “ou droit de modèle” sont insérés après “droit d’auteur”.

Capital Gains Tax Act 1979 (c.14)

(Loi de 1979 relative à l’impôt sur les plus-values)

26. A l’article 18.4) de la loi de 1979 relative à l’impôt sur les plus-values (situation de certains avoirs aux fins de la loi), le sous-alinéa h) (propriété intellectuelle) est remplacé par le texte suivant:

“ha) les brevets, les marques de produits, les marques de services et les dessins et modèles enregistrés sont situés à l’endroit où ils sont enregistrés et, s’ils sont inscrits dans plusieurs registres, à l’endroit ou est situé chaque registre, et les droits ou licences d’exploitation ou d’utilisation d’un brevet, d’une marque de produits, d’une marque de services ou d’un dessin ou modèle enregistré sont situés au Royaume- Uni s’ils peuvent être exercés, ou si tout droit qui en découle peut être exercé, dans ce pays,

hb) le droit d’auteur, le droit de modèle et les franchises et les droits ou licences d’exploitation de toute oeuvre ou de tout modèle protégé sont situés au Royaume-Uni s’ils peuvent être exercés, ou si tout droit qui en découle peut être exercé, dans ce pays,”.

British Telecommunications Act 1981 (c.38)

(Loi de 1981 sur les télécommunications britanniques)

27. Dans la cinquième annexe de la loi de 1981 sur les télécommunications britanniques (dispositions transitoires particulières relatives à l’exploitation ou à l’usage de brevets et de dessins ou modèles enregistrés), dans la dernière partie des alinéas 9.1) et 19.1) (qui ont trait à l’usage de modèles et de documents), les termes “ou droit de modèle” sont insérés après “droit d’auteur”.

Supreme Court Act 1981 (c.54)

(Loi de 1981 sur la Cour suprême)

28.— 1) La loi de 1981 sur la Cour suprême est modifiée comme suit.

2) A l’article 72 (suppression de l’exception du témoignage contre soi-même dans certaines procédures relatives à la propriété intellectuelle), à l’alinéa 5) (signification des termes “propriété intellectuelle”), les mots “, droit de modèle” sont insérés après “droit d’auteur”.

3) Dans la première annexe (répartition des dossiers au sein de la Haute Cour), à l’alinéa 1.i) (dossiers attribues à la Chancery Division : affaires et questions se rapportant

à certains domaines de la propriété intellectuelle), les mots “ou droit d’auteur” sont remplacés par”, droit d’auteur ou droit de modèle”.

Broadcasting Act 1981 (c.68)

(Loi de 1981 sur la radiodiffusion)

29.—1) La loi de 1981 sur la radiodiffusion est modifiée comme suit.

2) A l’article 4 (attributions générales de l’IBA en ce qui concerne les programmes). l’alinéa 7) est remplacé par le texte suivant:

“7) Afin de superviser et de contrôler les programmes (y compris les émissions publicitaires) qu’elle diffuse, l’Authority peut faire et utiliser des enregistrements de ces programmes ou de toute partie de ceux-ci.”

3) A l’article 20.9). l’alinéa a) est supprimé. Cable and Broadcasting Act 1984 (c.46)

(Loi de 1984 sur la distribution par câble et la radiodiffusion)

30.—1) La loi de 1984 sur la distribution par câble et la radiodiffusion est modifiée comme suit.

2) A l’article 8. l’alinéa 8) est supprimé.

3) A l’article 49 (pouvoir du ministre de donner des instructions dans l’intérêt public), l’alinéa 7) est remplacé par le texte suivant:

“7) Aux fins du présent article, le lieu d’où une émission est réalisée est. s’agissant d’une transmission par satellite, le lieu d’où les signaux porteurs de l’émission sont émis en direction du satellite.”

4) A l’article 56.2) (interprétation), la définition de la “loi de 1956” est supprimée.

Companies Act 1985 (c.6)

(Loi de 1985 sur les sociétés)

31.—1) La douzième partie de la loi de 1985 sur les sociétés (inscription des sûretés et privilèges) est modifiée comme suit.

2) A l’article 396 (inscription des sûretés et privilèges en Angleterre et au Pays de Galles : sûretés et privilèges dont l’inscription est obligatoire), à l’alinéa 1)j), la fin du texte à partir de “sur un brevet” est remplacée par “ou sur tout droit de propriété intellectuelle”, et le texte suivant est inséré à la suite de l’alinéa 3):

“3A) Sont réputés relever de la ‘propriété intellectuelle’ aux fins du présent article

a) tout brevet, marque de produits. marque de services. dessin ou modèle enregistre. droit d’auteur ou droit de modèle:

b) toute licence concédée en vertu ou à l’égard d’un droit de cette nature.”

3) A l’article 410 (inscription des sûretés et privilèges en Ecosse : sûretés et privilèges dont l’inscription est obligatoire). á l’alinéa 3)c) (biens meubles incorporels), le texte suivant est inséré à la suite du point vi):

“vii) un dessin ou modèle enregistré ou une licence y relative,

viii) un droit de modèle ou une licence y relative,”.

Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73)

(Loi de 1985 sur la réforme du droit (dispositions diverses) (Ecosse))

32. A l’article 15 de la loi de 1985 sur la réforme du droit (dispositions diverses) (Ecosse) (suppression de l’exception du témoignage contre soi-même dans certaines procédures relatives à la propriété intellectuelle), à l’alinéa 5) (signification de l’expression “propriété intellectuelle”), les mots “ou droit de modèle” sont insérés après “droit d’auteur”.

Atomic Energy Authority Act 1986 (c.3)

(Loi de 1986 sur l’Administration de l’énergie atomique)

33. A l’article 8.2) de la loi de 1986 sur l’Administration de l’énergie atomique (pouvoirs de l’administration en ce qui concerne l’exploitation de la recherche: signification de l’expression “propriété intellectuelle”), les mots “, droits de modèle” sont insérés après “droit d’auteur”.

Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I.3))

(Ordonnance de 1986 sur l’enseignement et les bibliothèques (Irlande du Nord))

34. A l’article 77 de l’ordonnance de 1986 sur l’enseignement et les bibliothèques (Irlande du Nord) (rémunérations des services de bibliothèques), le texte suivant est ajouté à la suite de l’alinéa 2):

“3) Les dispositions de la première partie de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets (droit d’auteur) relatives à la location de copies d’enregistrements sonores, de films et de programmes d’ordinateur sont applicables à tout prêt de copies d’œuvres de cette nature par une commission (board), que ce service soit ou non rendu à titre onéreux.”

Companies (Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I.6))

(Ordonnance de 1986 sur les sociétés (Irlande du Nord))

35. A l’article 403 de l’ordonnance de 1986 sur les sociétés (Irlande du Nord) (inscription des sûretés et privilèges: sûretés et privilèges dont l’inscription est obligatoire), à l’alinéa 1)j), la fin du texte à partir du “sur un brevet” est remplacée par “ou sur tout droit de propriété intellectuelle” et le texte suivant est inséré à la suite de l’alinéa 3):

“3A) Sont réputés relever de la “propriété intellectuelle” aux fins du présent article

a) tout brevet, marque de produits, marque de services, dessin ou modèle enregistré, droit d’auteur ou droit de modèle:

b) toute licence concédé en vertu ou à l’égard d’un droit de cette nature.” Income and Corporation Taxes Act 1988 (c.1)

(Loi de 1988 relative à l’impôt sur le revenu et sur les sociétés)

36.—1) La loi de 1988 relative à l’impôt sur le revenu et sur les sociétés est modifiée comme suit.

2) A l’article 83 (taxes et frais déductibles pour le calcul des bénéfices et gains commerciaux) les termes “la prorogation de la durée du droit d’auteur sur un dessin ou modèle” sont remplacés par “une prorogation de la durée du droit afférent à un dessin ou modèle enregistré”.

3) A l’article 103 (imposition des recettes perçues après cessation d’une activité professionnelle ou commerciale), à l’alinéa 3) (sommes auxquelles l’article n’est pas applicable), le texte suivant est inséré à la suite du sous-alinéa b):

“bb) une somme forfaitaire versée aux exécuteurs testamentaires de l’auteur d’un modèle demeurant protégé par un droit de modèle, en contrepartie de la cession globale ou partielle de ce droit,”.

4) A l’article 387 (report en tant que pertes de certains versements opérés impôt fiscal déduit), à l’alinéa 3) (versements auxquels l’article n’est pas applicable), au sous- alinéa e) (redevances de droit d’auteur) les mots “ou de redevances à l’égard d’un droit afférent à un dessin ou modèle auquel l’article537B est applicable” sont insérés après “est applicable”.

5) A l’article 536 (imposition des redevances de droit d’auteur lorsque le titulaire est à l’étranger), la définition du “droit d’auteur” à l’alinéa 2) est remplacée par le texte suivant:

“le terme ‘droit d’auteur’ ne s’applique pas à un droit d’auteur afférent à

i) un film cinématographique ou un enregistrement vidéo, ou

ii) la bande sonore de ce film ou de cet enregistrement, dans la mesure où elle n’est pas exploitée séparément; et”.

6) Au chapitre premier de la treizième partie (dispositions particulières diverses: propriété intellectuelle), le texte suivant est inséré à la suite de l’article 537:

“Dessins et modèles

Mesures de dégrèvement fiscal concernant les sommes perçues au titre des dessins et modèles

537A.-1) Lorsque le concepteur d’un modèle protégé par un droit de modèle cède ce droit, ou lorsque l’auteur d’un dessin ou modèle enregistré cède le droit afférent au dessin ou modèle, en tout ou en partie, ou concède une licence y relative, et que

a) la contrepartie de la cession ou de la concession consiste, entièrement ou en partie, en une somme à laquelle le présent article est applicable qui, sinon. serait entièrement prise en compte dans le calcul du montant de ses bénéfices ou gains pour une même année fiscale, et

b) il s’est consacré à la création du dessin ou modèle pendant plus de 12 mois,

il peut, en présentant une requête, demander qu’il soit donné effet aux dispositions suivantes pour ce qui concerne les sommes ainsi perçues.

2) Si la durée de la période pendant laquelle il s’est consacré à la création du dessin ou modèle n’excède pas 24 mois, la moitié seulement de la somme perçue sera, à toutes fins utiles pour le calcul de l’impôt sur le revenu, réputée être devenue exigible à la date à laquelle elle l’a effectivement été, l’autre moitié étant réputée avoir été exigible 12 mois avant cette date.

3) Si la durée de la période pendant laquelle il s’est consacré à la création du dessin ou modèle est supérieure à 24 mois, un tiers seulement de la somme perçue sera réputé. à toutes fins utiles pour le calcul de l’impôt sur le revenue, être devenu exigible à la date à laquelle il l’a effectivement été. le second tiers étant réputé avoir été exigible 12 mois, et le troisième tiers 24 mois, avant cette date.

4) Les dispositions du présent article sont applicables

a) à un versement forfaitaire, y compris une avance non remboursable à valoir sur les redevances, et

b) à tout autre versement de redevances ou de sommes payables périodiquement, ou à tout acompte à valoir sur ceux-ci, qui ne deviennent exigibles qu’après l’expiration d’un délai de deux ans après que les articles fabriqués d’après le modèle ou, selon le cas, les articles auxquels le dessin ou modèle est appliqué, ont été pour la première fois mis en vente ou en location.

5) Une requête présentée conformément au présent article à l’égard de tout versement auquel celui-ci est applicable en vertu des seules dispositions de l’alinéa 4)b) ci-dessus est réputée viser tous les versements de même nature effectués au titre des droits afférents au dessin ou modèle en question que doit percevoir le requérant, avant ou après la requête; cette requête peut être déposée à tout moment jusqu’au 5 avril suivant l’expiration d’un délai de huit ans à compter de la date à laquelle les articles fabriqués d’après le modèle ou, selon le cas, les articles auxquels le dessin ou modèle est appliqué, ont été pour la première fois mis en vente ou en location.

6) Dans le présent article

a) le terme “concepteur” désigne aussi toute personne ayant collaboré à la conception du modèle, et

b) toute mention de la mise en vente ou en location d’articles s’entend de leur mise en vente ou en location en tout lieu du monde, par le titulaire du droit de modèle ou, selon le cas, le propriétaire du dessin ou modèle ou avec son autorisation.

Imposition des redevances relatives à des dessins ou modèles lorsque le titulaire est à l’étranger

537B.-1) Lorsque le titulaire d’un droit afférent à un dessin ou modèle ne réside pas habituellement au Royaume-Uni, les dispositions de l’article 349.1) sont applicables à tout versement de redevances ou de sommes payables périodiquement au titre de ce droit, ou à tout acompte à valoir sur ceux-ci, de même qu’elles s’appliquent aux versements annuels qui ne sont pas prélevés sur des bénéfices ou gains soumis à l’impôt sur le revenu.

2) A l’alinéa 1) ci-dessus

a) on entend par “droit afférent à un dessin ou modèle” un droit de modèle ou le droit afférent à un dessin ou modèle enregistré,

b) la mention du titulaire d’un droit doit être interprétée comme visant également une personne qui, bien qu’ayant cédé le droit à une autre, est habilitée à percevoir des versements périodiques au titre de ce droit, et

c) la mention des redevances ou autres sommes versées périodiquement au titre d’un droit ne vise pas les redevances ou sommes versées au titre d’articles dont il est démontré qu’ils ont été exportés pour être mis en circulation ailleurs qu’au Royaume-Uni.

3) Lorsqu’un versement auquel les dispositions de l’alinéa 1) sont applicables est perçu par l’intermédiaire d’un mandataire résidant au Royaume-Uni et que ce mandataire est habilité à déduire du montant revenant au titulaire de droit une somme à titre de commission sur les services rendus, la somme revenant au mandataire vient en réduction du montant du versement aux fins des dispositions de l’article 349.1).

4) Lorsque la personne par qui ou par l’intermédiaire de qui le versement est effectué ne sait pas que cette commission doit être versée ou n’en connaît pas le montant. tout impôt sur le revenu qu’elle déduit ou qui lui est imputé est calculé, en premier lieu — et le relevé de paiement est établi — sur la base du montant total du versement sans qu’il soit nullement tenu compte des montants pouvant venir en déduction de celui-ci et, dans ce cas. sur requête établissant la preuve des faits, il est remboursé au mandataire, pour le compte du titulaire du droit, une part de l’impôt sur le revenu appropriée compte tenu de la somme déduite à titre de commission.

5) La date à laquelle est effectué un versement visé à l’alinéa 1) est réputée, à toutes fins utiles sur le plan fiscal, être celle à laquelle il est effectué par la

personne par laquelle il est opéré en premier lieu et non celle à laquelle il est effectué par une autre personne ou par son intermédiaire.

6) Tout accord tendant à ce qu’un versement visé à l’alinéa 1) soit opéré intégralement et sans aucune déduction de l’impôt sur le revenu est nul.”

7) A l’article 821 (versements opérés impôt fiscal déduit avant l’adoption de la loi fixant l’impôt sur le revenu pour l’année considérée), à l’alinéa 3) (versements pouvant faire l’objet d’un ajustement), le texte suivant est ajouté à la suite du sous-alinéa a):

“aa) tout versement effectué au titre d’un droit afférent à un dessin ou modèle auquel l’article 537B est applicable; et”.

8) Dans la dix-neuvième annexe (ventilation de l’impôt des sociétés ayant cessé leurs activités), à l’alinéa 10.4) (cessation ou liquidation : dettes prises en considération bien que le créancier soit un partenaire ou un associé), à l’alinéa c) (versements effectués au titre de l’exploitation de certains biens), le membre de phrase compris entre “biens corporels” et “s’étend)” est remplacé par:

“—

i) biens corporels,

ii) droit d’auteur sur une oeuvre littéraire, dramatique, musicale ou artistique au sens des dispositions de la première partie de la loi de 1988 sur le droit d’auteur, les dessins et modèles et les brevets (ou tout droit comparable prévu dans le cadre de la législation d’un pays auquel les dispositions de cette partie ne s’étendent pas), ou

iii) droit de modèle.”

9) Dans la vingt-cinquième annexe (imposition des sociétés britanniques établies à l’étranger : activités exonérées), à l’alinéa 9.1)a) (investissements : droit de détenir des biens), les termes “brevets ou droit d’auteur” sont remplacés par “ou propriété intellectuelle” et le texte suivant est inséré à la suite de ce sous-alinéa:

“1A) Au sous-alinéa 1)a) ci-dessus, les termes ‘propriété intellectuelle’ désignent les brevets, les dessins et modèles enregistrés, le droit d’auteur et le droit de modèle (ou tout autre droit comparable prévu dans le cadre de la législation d’un autre pays que le Royaume-Uni).”

Copyright, Designs and Patents Act 1988 (Chapter 48)، المملكة المتحدة

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